author: Riohardson, Judge,

text:
    St. Louis University, Respondent, v. McCune et al., Appellants.
    1. Where a common field lot confirmed by the second section of the act of Congress of April 29,1816, has a definite and certain location, the statute of limitations will run in favor of an adverse possession prior to an approved survey by the United States. (Aubuchon v. Ames, 27 Mo. 87, affirmed.)

      2. Where a proprietor of land, through mistake or ignorance of the true location of the line separating his tract from that of an adjoining proprietor and -with no intention to claim beyond the true line of separation, extends his fence beyond such line and encloses a portion of the land of such adjoining proprietor, the possession thus acquired will not be adverse.

      Appeal from Si. Louis Land Court.

    By the act of Congress of April 29,1816, a common field lot in the St. Louis Grand Prairie common field was confirmed to the legal representatives of Jacques Labbé. By the same act, the common field lot next south of the lot so confirmed to Labbé’s representatives was confirmed to the legal representatives of Frangois Lachapelle. These confirmations were surveyed by the United States. The survey of the Labbé lot is numbered 1587 ; the survey of the Lachapelle lot 1592. The latter survey was made in 1842 and was approved in 1857. The plaintiff claims title under the Labbé confirmation; the defendants under the other. The plaintiff seeks to recover in the present suit a narrow strip of land about 1,205 feet long, and sixteen feet ten inches wide at one end, and nine feet ten inches at the other, containing about one-third of an acre. This strip lies within the Lachapelle confirmation as surveyed by the United States. The plaintiff introduced testimony showing that it and those under whom it claimed “ had had open, continued, notorious, uninterrupted and visible possession of the land sued for, for more than twenty years prior to the entry of defendants, by actual enclosures, and that in March, 1836, the division fence was upon the line claimed by plaintiff as the south line of the land sued for, and that said fence was then old, and had the appearance of having been there many years, and that prior to defendants’ entry in 1856, the line had not been disputed, and that plaintiff’s possession had been held by the line of the old fence, and that defendants entered and put up the fence on the line of the survey in August, 1856.” There was no evidence showing any agreement as to the line, except the actual possession by the fences, which possession was recognized and acquiesced in by the neighboring proprietors.

      The court gave the following instruction at the instance of the plaintiff: “ If the jury find from the evidence in this cause that after the confirmations respectively to the representatives of Jacques Labbé and Lachapelle of adjoining tracts of land, Lachapelle’s representatives or those claiming under them entered upon the land so confirmed to Lacha-pelle’s representatives, and fixed a boundary between the tracts of land so respectively confirmed to said Lachapelle’s representatives and said Labbé’s representatives, and marked the same by stones or other monuments, and built a fence along and upon said line, and claimed and occupied only up to said line for more than twenty years, and that the representatives of Jacques Labbé or those claiming under them agreed and assented to said line, and took possession of and occupied the land in question up to the said line for more than twenty years before the commencement of this suit, the plaintiff ought to recover.”
    The defendants asked the court to instruct the jury as follows : “ 1. If the jury believe from the evidence that the defendants are in possession of the land sued for within the lines of survey No. 1592 for F. Lachapelle’s legal representatives as made by the United States, and that said survey was made in 1842 and approved in March 2, 1857, then the jury will find for the defendants. 2. If the jury believe from the evidence that the plaintiff claimed title to part of survey No. 1587 under Jacques Labbé, and his possession has extended over the line before the survey was made by the United States for defendants, then said possession was not adverse to the title of defendants, as it was a mistake as to the true line. 3. The plaintiff claiming title under the confirmation to Jacques Labbé and survey No. 1587, any possession by plaintiff over the lines of his confirmation will not be adverse to the defendants, claiming under F. Lachapelle’s survey No. 1592, until a survey was made by the United States marking out the dividing line between the confirmations of the plaintiff and defendants respectively.” The court refused these instructions, but instructed as follows for the defendants: “ 4. If the jury believe from the evidence that the possession of the plaintiff of the land sued for was by mistake as to the true line between the parties, their said possession was not adverse.”
    The cause was tried by the court without a jury. The court found and rendered judgment for plaintiff.

      Field and Whittelsey, for appellants.
    I. There was no adverse possession beyond the true line, for the reason that manifestly there was no claim of title beyond that line. Bare possession, unaccompanied with a claim of title, or originating in accident, ignorance or mistake, is not adverse to the true owner. (See Cutter v. Wadding-ham, 22 Mo. 266; Jackson v. Porter, 1 Paine, 466; Riley v. Griffin, 16 Geo.-; Brown v. Gay, 3 Greenl. 226 ; Ross v. Gould, 5 Greenl. 240 ; Lincoln v. Edgcomb, 31 Maine, 345 ; Gilchrist v. McLaughlin, 7 Ired. 315; McKenny v. Kenny, 1 A. K,. Marsh. 460 ; Cleveland v. Plagg, 4 Cush. 76 ; Olwine v. Holman, 11 Harr. 285.) The instruction given for the plaintiff was erroneous. (Taylor v. Zepp, 14 Mo. 482.)
    II. Until the survey made by the United States definitely located the line between the parties, the intention which constitutes an adverse possession was wanting. (See Jourdan v. Barrett, 4 How. 169, 184; Bryan v. Forsyth, 19 How. 384 ; West v. Cochran, 17 How. 415; Ledoux v. Black, 18 How. 475 ; Cousin v. Blanc, 19 How. 202 ; Cabanné v. Lin-dell, 12 Mo. -.) The point presented in this case differs from that of Aubuchon v. Ames, 27 Mo. 89, or that of Landes v. Brant, 10 How. 348. See Menkens v. Blumenthal, 19 Mo. 496 ; Ang. on Lim. § 384; Comegyss v. Carley, 3 Watts, 280; Bradstreet v. Huntington, 5 Pet. 440; Ewing v. Burrett, 11 Pet. 41.

      Krwm Sf Harding, for respondent.
    I. Uninterrupted, continuous possession for more than twenty years is shown by the testimony. This possession was adverse; it was in pursuance to a claim. The fence was made upon a line dividing the two tracts. The parties held possession up to the fence. Lachapelle’s representatives acquiesced in this claim and possession. It was not necessary to show an express agreement. (Biddle v. Mellon, 18 Mo. 335; Joyal v. Rippy, 19 Mo. 660.) The instruction given at the instance of plaintiff was correct. The parties made a practical location or designation of the dividing line between them. From their acts an agreement in respect to the dividing line may well be inferred. (Taylor v. Zepp, 14 Mo. 482; Rockwell v. Adams, 6 Wend. 467.) The instructions asked by the defendants were properly refused.
   Riohardson, Judge,

delivered the opinio

The dispute in this case is about a smar the line between two common fields in the St. Louis. Both of the lots were confirme! bv ftplkff'of Congress of the 29th April, 1816, but the offl&iM survearoí the defendant’s lot was not approved until 1857,ana itaoes not appear when the survey of the plaintiff’s confirmation was approved.

The first question that ¿rises is -whether there can be an adverse possession of a confirmation under the act of 1816 until the confirmation has been surveyed and the survey approved. That question was discussed and decided in the case of Aubuchon v. Ames, 27 Mo. 89, which is not distinguishable from this case, and the instructions therefore asked by the defendant bearing on that point were properly refused.

If the plaintiffs erected their fence accidentally upon the defendant’s land through mistake or ignorance of the correct line separating the tracts and without intending to claim beyond their true line, then the line of occupation thus taken and the possession that followed it did not work a disseisin. The proposition is fully sustained by the authorities cited in the defendant’s brief.

The instruction given for the plaintiff contained, in the abstract, a. correct statement of the law, which is illustrated and approved by the supreme court of the United States in the case of Boyd v. Graves, 4 Wheat. 518 ; but the evidence preserved in the record did not warrant it, and for that reason it is erroneous.

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


source: Caselaw Access Project

author: RicháRdson, Judge,

license: Public Domain

text:
    Prince, Respondent, v. Cole, Appellant.
    1. Since the enactment of the practice act of 1849, the supreme court will reverse for error committed during the progress of a trial and duly excepted to, although the same may not have been brought to the attention of the court by a motion for a new trial.

      Appeal from, Si. Louis Court of Common Pleas.

    This was an action to recover six hundred and eight dollars for the board, lodging, washing and clothing of a certain slave boy, named Richard, belonging to the estate of Presley N. Ross. The defendant Cole was one of the administrators of said Ross. Said Richard was a son of the plaintiff. Ross died in 1845. Plaintiff also belonged to the estate of Ross. He and his wife were sold at an administrator’s sale in 1849 to one Baker, who immediately emancipated the plaintiff. Immediately after this administrator’s sale, Cole, the administrator, took away two of the children of plaintiff, but left the boy Richard with him. There was. evidence tending to show that Cole told jdaintiff to take the boy Richard and take care of him. One Tosti was introduced as a witness on behalf of the defendant, who testified that he became entitled to Richard in 1854 in right of his wife, who was a daughter of Ross; that he talked with plaintiff frequently about the boy Richard; that plaintiff requested him to leave Richard with him as long as he could possibly do without him ; that he did do so to his own inconvenience; that plaintiff applied to witness to purchase Harry, an older brother of Richard; that he sold Harry to plaintiff at less than Ms value, because lie was bis father and because he said he had raised Richard at his own cost and expense; that plaintiff paid nine hundred dollars for Harry. Harry was sold to plaintiff before Richard was taken home by Yosti. The court refused to permit the witness to state what the value of Harry was at the time of his sale.
    The jury found for plaintiff.

      Bland Coleman, for appellant.
    I. The court erred in refusing to allow Yosti to state the value of the boy Harry. The court also erred in refusing the instructions asked by defendant. The instructions given were erroneous.

      H. N. Hart, for respondent.
    I. The instructions given presented the law of the case fairly and fully before the jury.
   RicháRdson, Judge,

delivered the opinion of the court.

The evidence of Mr. Yosti tended to show, first, that the plaintiff had no just claim whatever on the administrator for taking care of his own child, and that he was not entitled and never expected to receive remuneration from any person ; and, in the second place, that if he was entitled to any thing, he did not look to the defendant, as he was compensated by the owner of the slave, to whom he directly appealed, in the reduced price at which he was allowed to purchase Harry. In this view it was proper, not only to ascertain the price at which Harry was sold, but to inquire what he was worth. We think, then, that the court improperly refused to permit the witness to state the value of Harry at the time he was sold to the plaintiff.

It appears that the defendant excepted at the time to the ruling of the court in excluding this evidence, but did not assign it as a reason in his motion for a new trial. Formerly, exceptions taken during the progress of a trial were deemed to be waived if they were not noticed in a motion for a new trial, but it has since been decided that the act of 1849 introduced a different practice, and that such an omission will not preclude a party from insisting on his exceptions in this court. (Fine v. Rogers, 15 Mo. 315 ; Wagner v. Jacoby, 26 Mo. 530.)

The instructions which the court gave before the retirement of the jury stated the facts hypothetically in two different ways, covering the theory of each of the parties, and presented fairly and fully the law of the case. But the instruction, marked C, hurriedly given on the return of the jury, was erroneous, as it was vague and calculated to mislead. The other judges concurring, the judgment will be reversed and the cause remanded.


author: Scott, Judge,

text:
    Robinson, Respondent, v. City of St. Louis, Appellant.
    1. The inspector of the Are department of the city of St. Louis had power, under the thirteenth section of the ordinance establishing and regulating the fire department, approved April 5, 1856, (Eev. Ord. 434,) to order and contract for repairs of engine houses, where the repairs ordered amounted to more than fifty dollars; a contract for repairs made by him as inspector, though not made in the name of the city of St. Louis, would be binding upon her.

      Appeal from Si. Louis Land Court.

    This was an action commenced to enforce a mechanic’s lien on the engine house of the Liberty Fire Engine Company of St. Louis. The said company and the city of St. Louis were defendants. A judgment by default was rendered against the company. At the trial the plaintiff adduced in evidence ordinance No. 3595 of the city of St. Louis. By the thirteenth section of this ordinance, it is provided among other things as follows : “ Sec. 13. All repairs to engine houses or apparatus amounting to more than the sum of fifty dollars shall, on the certificate of the inspector, by whom only such repairs shall be ordered, be paid out of the city treasury, out of appropriation for fire department; all other expenses made or incurred by any fire company on its own order shall be payable by said company out of its quarterly allowance. It is also hereby,” &c. George N. Stevens was then introduced as a witness. He testified that he had been inspector of the fire department since 1856; that as such inspector he made a contract with plaintiff to repair the engine house of the Liberty Eire Company. This contract was as follows: “ St. Louis, March 28, 1857. This article of agreement for repairing the Liberty engine house, made this day and date by and between George N. Stevens (inspector of the fire department of the city of St. Louis) of the first part, and James P. Robinson of the second part, both of the city and county of St. Louis, witnesseth, that the said party of the second part, for and in consideration of the sum of $1,788.50, contracts and agrees to repair said Liberty engine house according to the above specifications ; and on the fulfillment of contract as above mentioned, the said party of the first part agrees and binds himself by this article to pay unto said party of the second part the above mentioned sum of $1,788.50. Witness our hand and seal, the day and date aforesaid. [Signed] George N. Stevens, Inspector Eire Department.” Stevens also testified that the work done by plaintiff under said contract was worth $1,788.50; that he as inspector certified the same to be correct; that the city was in the habit of paying amounts certified by him for repairing engine houses. It also appeared that the necessary steps had been taken to secure a lien. The defendant asked the court to instruct the jury as follows : “ The jury are instructed that the defendant is not a party to the contract read in evidence, and therefore the plaintiff can not recover in this action.” The court refused to give' the instruction. The jury found for the plaintiff.

      Bay (city counsellor) for appellant.
    I. The court erred in refusing the instruction asked by defendant. There is a fatal variance between the contract charged in the petition and the one given in evidence.

      Cline Jamison, for respondent.
    I. The court did not err in refusing the instruction asked. The fire inspector had power to make the contract. It was binding upon the city. (Angelí & Ames on Corp. § 294; Story on Agency, 160; Mechanics’ Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326 ; 9 Mass. 321; Dawes v. Jackson, 9 Mass. 464 ; Hovey v. Magill, 2 Conn. 680.) The certificate of the inspector bound the city.
   Scott, Judge,

delivered the opinion of the court.

The thirteenth section of the ordinance establishing and regulating the fire department (Rev. Ord. 1856, p. 438) empowered the inspector of the fire department to order repairs to engine houses where they exceeded in value fifty dollars. In pursuance to this ordinance the inspector made a contract with the plaintiff to repair the Liberty engine house for a sum exceeding fifty dollars. The only point, it seems, made for the city for the reversal of this judgment is, that it does not appear from the face of the contract that it was made by the city. There is no foundation for this objection. The inspector was sworn as a witness and proved that the contract was made by him for and on account of the city. The principles asserted in the case of the Mechanics’ Bank of Alexandria v. The Bank of Columbia, 5 Wheat. 326, sanction the introduction of this evidence. But there was no necessity for any such evidence, for the contract on its face showed that it was made for the city. It was made by G-eorge N. Stevens, who was the fire inspector, as such inspector, and it was signed by him as such officer. As the ordinance gave the inspector authority to contract, he was not an agent in that sense of the word that made it necessary for him to use the name of the city in contracting.

Affirmed, the other judges concurring.


author: Scott, Judge, RichaedsoN, Judge.

text:
    Chouquette et al., Respondent, v. Barada, et al., Appellants.
    1. The courts should not, in instructions to a jury, take for granted facts in issue in the cause.
    2. Where a deed, purporting to be the deed of a corporation, is admitted, and no objection is made to its introduction on the ground that the corporate seal has not been proved, this objection ■will not be entertained in the supreme court.
    3. Where an instrument purporting to be the act of a corporation has the common seal of the corporation attached and has been signed by the proper officer, it will be presumed that it was executed by authority of the corporation.
    4. A will not providing for children of the testator, though voidable under section twenty of the act concerning wills and testaments, (K. C. 1825, p. 795,) by such children, is good as against strangers; unless the children assert their right against the will, the title will remain in the devisee, who will have, however, a defeasible title.
    5. Where land owned by A. is in the adverse possession of B., and B. dies before the time of limitation is complete, devising his estate to his widow, but not naming or providing for his children in his will, and the widow remains in possession, not claiming under the will, but under an understanding with the children that she should enjoy the estate for life and that at her death it should go to them, and while she so remains in possession the time of limitation becomes complete and the widow’s interest is levied on under a judgment against her and sold and she dies; held, that the agreement of the widow with the children would be valid though by parol, it not being within the statute of frauds; that the purchaser would take subject to such agreement, whether he had notice of it or not.
    6. Courts should not in instructions comment on the evidence; it is the province of the jury to draw inferences from the facts in evidence; the courts should not give undue importance to particular facts in evidence by telling the juries that they are authorized to draw certain specified inferences from them.

      Appeal from St. Louis Land Court.

    This was an action in the nature of an action of ejectment to recover possession of a parcel of ground in the city of Carondelet. The cause has heretofore been before the supreme court, whose decision is reported in 23 Mo. 331. The defendant Barada was in possession as tenant of Sullivan and Papin, who were permitted to become parties defendant. The defendants by their answer denied the title of the plaintiffs and alleged an adverse possession in themselves, or those through whom they claim, for more than twenty years before commencement of this suit. At the trial the plaintiff gave in evidence Brown’s survey of Carondelet common; also a certified copy of an ordinance of the city of Carondelet, approved March 18, 1852, ordering the making of certain surveys and authorizing the making of deeds of quitclaim of lands embraced within said surveys; also a copy of a resolution dated August 5, 1852, of the city council authorizing the mayor to convey the lot in controversy to the children of Antoine Motier. The defendant objected to the admission of this resolution on the ground that it wanted the evidence required by the charter of its passage and authenticity. The plaintiffs then introduced in evidence the deed of the city of Carondelet, dated August 14,1852, to certain of the plaintiffs and to others their grantors. This deed purported to be made in pursuance of said resolution of August 5, 1852. Deeds from certain of the grantees in this deed and heirs of Antoine Motier, sr., to certain of the plaintiffs were then introduced in evidence.
    The defendant introduced evidence showing that between 1821 and 1824 Antoine Motier, sr., went upon the land with his family, built a log' house thereon, planted an orchard, made a garden, and with his family occupied the premises in controversy until his death in 1834; that he made a will whereby, without naming or providing for any of his children, he gave all his property to his widow. This will was dated January 6, 1834, and was proved March 8,1834. The widow got the will probated, and resided on the land with her children until evicted by Sullivan and Papin in October, 1847. Her children continued to live with her until they married, but left her as they married, except Antoine Motier, jr., who had married before his father’s death and resided elsewhere. Mr. Barada, a witness for defendants, testified that he was born and had always lived in Carondelet; that he knew the Motier family well, and when Motier, sr., went on this land and built his log house; that he drew his said will, and with the widow and at her request attended upon its probate ; that after her husband’s death she claimed and sued for several tracts of land in the common fields of Ca-rondelet, which she claimed under her father Clement Delor; that her claim embraced this land, for it ran all the way to the Mississippi river; that she sued persons upon diffex-ent parts of it; that she claimed the land, as witness believed, under her husband and Delor ; that she claimed land under her. father in the common field; that the common field came only to Fifth street; that she claimed to the river and that would include this land. The defendants also introduced a deed of the sheriff of St. Louis county, dated June 26, 1841, conveying to Sullivan and Papin all Madame Motier’s interest in the land in controversy. In October, 1847, Sullivan and Papin were put in possession by the sheriff under a writ of possession issued upon a judgment in ejectment in their favor against said Madame Motier. The defendants then offered to read in evidence a lease of this land from Sullivan and Papin to Baptiste Motier, one of the children of Madáme Motier, dated October 6,1847 ; also the record of a suit for an unlawful detainer, begun July 2, 1850, by Sullivan and Papin against Julien Chouquette, one of the plaintiffs, for the land in controvex-sy. Plaintiffs objected to the admission of these as in-elevant except to prove Sullivan and Papin in possession, and upon plaintiffs admitting that they had been in possession ever since the execution of said writ of possession in 1847, the court excluded them.
    The plaintiffs in rebuttal introduced as a witness Antoine Motier, who testified that after his father’s death his mother held the property, claiming under her husband, and claimed to occupy this land for herself and children, for herself during her lifetime, and for her children after her death; that she occupied the property without objection from her children ; that she had several occasions for selling it; that he, witness, would try to persuade her to sell it and with the money buy a smaller piece of land and live upon the balance of tbe money, but she would always refuse, saying that she meant to save it for her children; that he, witness, would tell her that her children could take care of themselves, but she would refuse to sell, saying that she would save it for her children ; that he thinks his mother died in 1854 or 1855 after the making of the deed by Oarondelet. Mr. Gamache testified that he was born in Stringtown, near Oarondelet, and had lived in Oarondelet since 1825 ; that he had heard widow Motier say that she was occupying this land for herself for her life and for her children after her death ; that he used to visit her on this land, and that at these visits she said this in conversations there; that she died in the house on this land in 1852 ; that he heard her say that she claimed a life estate and then it was her children’s; that he heard her say this as long, as he thinks, as five years before her death ; he would not say that it was as long as six years before ; that he heard her say it two or three years before her death; that he could not say whether he heard her say this before or after the late Mexican war; that he may have heard it as eai’ly as 1842 or 1843.
    At the request of plaintiffs the court instructed the jury as follows : “ 1. The plaintiffs have shown themselves to be clothed with the documentary title to the land in controversy, and unless the defendants and those under whom they claim have had adverse possession of the premises for twenty years before the commencement of this suit, the plaintiff must have a verdict. 2. If the jury believe from the evidence that Madame Motier, after the death of her husband, did not claim the premises in controversy for herself in fee, but only claimed it for herself for life, and thereafter for the children of herself and Antoine Motier, and that this was the understanding between herself and her children after the death of Antoine Motier, then there was no adverse possession of said land by Madame Motier prior to 1847; and in that event the defendant can not avail himself of the statute of limitations. 3. The possession of the land by Madame Motier with her children after the death of her lius-band was, unless shown to be otherwise, the possession of her children as heirs of Antoine Motier.”
    The defendants requested the court to give the following instructions, of which the court gave those numbered one and two, and refused the others: “ 1. If the jury believe from the evidence that the defendants, and those from and through whom they obtained possession of the land sued for in this suit, had had a continuous possession thereof for at least twenty years next before the commencement of this suit, claiming the same adversely to all others, then they should find for the defendants. 2. The jury should disregard any claims of Madame Motier made touching this land after the sale thereof by the sheriff to Sullivan and Papin. 3. If the jury believe from the evidence that Antoine Mo-tier took possession of the property under a claim to it by his wife, and that the defendants Sullivan and Papin and those under whom they claim had had a continuous possession thereof, claiming the same adversely to all others, for twenty years next before the commencement of this suit, they should find for the defendants. 4. The will given is evidence for the jury to consider with reference to the way in which Mrs. Motier claimed possession of this property after her husband’s death. 5. If the jury believe from the evidence that the survey of the common of Carondelet by the United States was not approved by the United States until after the date of the deed of Carondelet read in evidence, then the plaintiffs acquired no title under said deed. 6. The deed of Carondelet given in evidence, and the resolution given in evidence referred to therein, are void and of no effect. 7. The resolution given in evidence by the plaintiffs the jury should disregard.”
    The jury found for plaintiffs.

      Todd, for appellants.
    It was error to instruct the jury that the plaintiffs had shown themselves to be clothed with the documentary title. It took questions of fact from the jury. The court erred in giving tbe second instruction for the plaintiffs. The third instruction was also ei’roneous. The court also erred in refusing the instructions asked by defendant, in admitting the resolution authorizing the mayor to convey to Antoine Motier and others, also in excluding the lease to Baptiste Motier and the record of the unlawful detainer suit. The verdict was clearly against the evidence.
    Gantt, for respondents.
    I. The resolution introduced was properly authenticated. Besides, it is immaterial whether it was or not; the deed was no less the deed of Carondelet even if this resolution was entirely ignored. (Schwartz v. Page, 13 Mo. 603.) The court did not err in excluding the lease to one of the grantors of plaintiffs and the record of the forcible detainer suit. The instructions given were a correct exposition of the law. The court did not err in refusing those offered by defendants. (See Donald v. Byrne, 2 Batty, 373 ; Cook v. Nicholas, 2 W. & Serg. 27; 13 Mo. 603 ; Buller’s N. P. 102 ; 1 Pairf. 256; 7 Paine, C. C. 457; 9 Wheat. 288 ; 2 S. & R. 527 ; 2 Salk. 423 ; 5 Burr. 2604.)
   Scott, Judge,

delivered the opinion of the court.

I do not see liow the plaintiffs can get along with their first instruction; If they relied on the documentary title, (which I understand to be the deed from Carondelet,) then they did not claim as heirs of Motier, and the case was nothing more than it was when formerly here as reported in 23 Mo. 331. I adhere to the opinion expressed in that case. If the heirs of Motier rely for title on the deed from Caron-delet and nothing more, (and the instruction is based on that deed alone,) then twenty years’ adverse possession in the defendants and those with whom they claim in privity will bar Carondelet and those claiming under her. Motier’s will was not a nullity; it would pass a title, though a defeasible one. Under the circumstances, I do not see what the deed from Carondelet had to do with the plaintiffs’ case. Their right, as founded on that deed, has been contested, and I have seen nothing since to indupe me to depart from the judgment heretofore pronounced on that title. The instruction was wrong in itself. It took for granted that the deed, whose legal existence was in issue before the jury, was a legal and effective instrument. Whether the deed was one or not was a question for the jury, and the court could not, by an instruction, usurp their province and direct them that the existence of an instrument was established when the question was one exclusively for them.

The deed from Carondelet was read and objections were made to it, but there was no objection on the ground that the seal of the corporation was not proved. Under these circumstances, that objection can not be regarded in this court.

By the first section of article eight of the act incorporating Carondelet, the corporation had authority to dispose of its commons. The seal of the corporation being fixed to the deed by the proper officer and signed by him, the presumption is that it was done by proper authority, and the burden of proof is on him who maintains the contrary. (The Public Schools v. Risley, ante p. 415, decided at this term.)

The record does not show that there were any objections made to the reading of the deed. There is an instruction asked directing the jury that the deed was void. But a party should not, by way of instruction, be permitted to take an exception to a deed in evidence, when if the objection had been taken on the trial it might have been obviated.

As the lease was made and the forcible entry and detainer tried during the life of Madame Motier, I do not see what influence these facts could have had on the merits of the case. If these occurrences had taken place after the death of Madame Motier, they would have been evidence against those who were agents in them.

If there was an. understanding between Madame Motier and her children that she should remain in possession of the land as doweress or as being entitled to remain there under the law until her dower was assigned, and that she would not take the land under the will nor claim it otherwise, no writing was necessary to prove this arrangement, and under it the statute of limitations could have no operation against her children, whatever may have been the law as to Caron-dclet. The statute of frauds would have nothing to do with such arrangement, as it had actually been earned into effect. Such an agreement by parol and if executory could not be enforced, but after it has been made and carried into effect by the parties there is nothing in the statute which prevents its previous existence from being shown by parol, as it was not done with a view to maintain an action on the agreement. Whether or not the defendants had notice of this understanding can not vary their condition. They bought the right, title and interest of Madame Motier, and they can not insist on the statute of limitations for her, when by her conduct she had given assurances to her children that her occupation was not in hostility to their rights. Nor could they force her to accept the devise.

After any interest in the land Madame Motier may have possessed had been sold, of course she could not affect it in the hands of the purchasers by her conduct or declarations. But it was a question for the jury, under all the circumstances, whether there was an understanding with regard to the holding by the widow and the time at which it was made.

Whether by the understanding Madame Motier was to have a life estate only, or the fee simple, was a question of fact for the jury, as the agreement was not in writing. (Halbert v. Halbert, 21 Mo. 275.)

The will was in evidence, and the defendants were at liberty to make such comments upon it and to draw such inferences from its existence as were warranted under the circumstances. When a party has secured the admission of his evidence, he has no right to give it an undue importance by an instruction to the jury as to the use they may make of it. Counsel can make their own comments on the evidence, and the jury will determine their weight. If such instructions are refused, they can not come into this court and complain that their refusal was tantamount to telling the jury that the inference they sought to draw from the evidence was unwarranted. We do not know that refused instructions are read in the hearing of the jury, and, if they are, counsel can not expect, by asking improper instructions, to gain an advantage in this court. No court in trying a cause would permit the refusal of an instruction to operate to the prejudice of the party asking it by suffering such refusal to be made the ground of an unwarrantable inference. Where the law fixes the weight or effect of evidence, there is no impropriety in the courts declaring it to the jury ; but when one fact or piece of evidence is merely used to show the existence of another fact which is to be found by the jury, the court can not, by way of instruction, direct the jury that the inference is warranted. If it is so, the law presumes the juror more competent to draw it than the judge. Our law will not allow the judge even to comment on the evidence, where the jury may give what weight they please to the comment. But this practice would, by way of imperative instruction, compel the jury to make an inference or otherwise have their verdict set aside, a consequence which does not necessarily follow from a refusal on the part of a jury to be governed by the comments of the court. In my opinion, the judgment should be reversed and the cause remanded.

RichaedsoN, Judge.

The plaintiffs claim the land in controversy under two titles; first, as purchasers from Caronde-let, and secondly, as heirs of Antoine Motier.

The possession of the widow was in privity with that of her husband, and whether she claimed the absolute estate, or only a life estate, recognizing the right of her children to the reversion, is immaterial so far as Carondelet is concerned, for her possession was certainly adverse to Carondelet, though it may not have been so as to her children. Her possession was transferred by act of law to the defendants, and so a continuous adverse possession for more than twenty years was established after the period that Oarondelet was incorporated and in a condition to sell. (23 Mo. 331.) The second instruction then was erroneous, for the plaintiffs went to the jury with proof in reference to both of the titles under which they claimed, and the facts hypothetically stated in the instruction did not prevent the statute of limitations from running against one of them.

In my opinion there is nothing in the will to prevent the plaintiffs from recovering on their title as heirs of their ancestor. The will is not void, and for many purposes, as against strangers, it may operate as a valid instrument; but, like the deed of an infant, it may be avoided by the children hot named nor provided for ; and when, as in this case, all of them are pretermitted, they may avoid it in an action of ejectment. The course would be different, if some of the heirs were provided for in the will and others not. (Hill v. Martin, ante p. 78.)

I am in favor of reversing the judgment and remanding the cause.


text:
    O’Brien, Appellant, v. Perry et al., Respondents.
    1. On the third of October, 1807, one A. gaye to the United States recorder of land titles a notice in writing to the effect that he claimed, as assignee of B., six hundred and thirty-nine acres of land situate at Mine a Breton, by yirtue of “ inhabitation and cultivation” thereof by saidB. This claim was presented to the hoard of commissioners in 1807, but was not then acted upon. In 1811, the claim was again presented to the hoard and was rejected on the ground that B. claimed another tract of land by concession. In 1820 notice of the claim was filed in the land office at Jackson, Mo., and the land was marked out as reserved from sale on the plat on file in said office by red dotted lines. In 1825, Recorder Hunt, upon proof made before him by C. and D., who were the legal representatives of A. and B. as respected the whole tract claimed at Mine a Breton, issued eertif-cates of confirmation to said C. and D. for two lots — one a village lot in Mine a Breton, and the other an outlot of said village containing about fourteen arpens. Both these lots were embraced in the tract of six hundred and thirty-nine acres as claimed before the recorder by A. On the 3d of December, 1833, C., ■who had acquired the interest of D., submitted said claim for the said tract to the board of commissioners organized under the act of Congress of July 9,1382, and adduced testimony in its support. The board took no action thereon. On the 7th of August, 1831, C., in consideration of the privilege of preemption granted by the third section of the act of Congress of July 9, 1832, taken in connection -with the supplementary act of March 2, 1833, waived and relinquished to the United States, by deed duly executed, all claim whatever to said tract of six hundred and thirty-nine acres. The description in this deed of waiver and relinquishment embraced the whole tract including the village lot and outlot covered by Hunt’s certificates. At the date of this deed of relinquishment and waiver, C. resided upon the village lot and cultivated the outlot for which Hunt’s certificate had been issued in 1825, but no portion of his improvements extended beyond the boundaries of these lots, except a part of a field, which did extend beyond the lines of said outlot as afterwards surveyed by the United States. After his said relinquishment and waiver and about the 1st of September, 1834, C. made application to the register of the land office at Jackson, Mo., to enter said tract as a preemptor under the third section of the act of Congress of July 9, 1832. He was not then permitted to make the entry because the public surveys were not then completed. Afterwards, on the 26th of November, 1839, C. was permitted to and did enter, as preemptor under said act of Congress of July 9, 1832, in conformity with the township and section lines, and their interferences with said tract so relinquished to the United States, various portions thereof, among others a fractional half quarter section in fractional section fifteen, township thirty-seven north, range two east. In 1843, this entry was cancelled by order of the commissioner of the general land office, concurred in by the secretary of the treasury, on the ground that the third section of the act of July 9, 1832, gave thp right of preemption to none but actual settlers and housekeepers on the land sought to be entered; that C. did not bring himself within the provisions of said section, his residence on the village lot and his- actual possession and cultivation of the outlot not constituting him an actual settler and housekeeper as to the whole tract claimed. After-wards, in 1847, one E. entered said land as a preemptor, and in 1854 obtained a patent therefor from the United States. Held, in a suit for possession by E. against C., that the claim of C., as the legal representative of B., to the tract of six hundred and thirty-nine acres was a claim within the meaning of the act of Congress of March 2, 1833; that C. was entitled, under the third section of the act of Congress of July 9, 1832, to relinquish or waive said claim in favor of the United States; that, having made such a waiver or relinquishment, C. had a right, under said third section, to enter said tract as a preemptor irrespective of the question whether he was an actual settler and housekeeper thereon or not; that the act of the executive officers of the United States in cancelling and annulling C.’s entry was void; that his entry, notwithstanding such cancellation, was valid and binding upon the United States and all persons claiming under the United States by title subsequent, whether by patent or otherwise.

      Appeal from Washington Circuit Court.

    This was an action in the nature of an action of ejectment, commenced May 4, 1855, to recover possession of a tract of 58 54-100 acres, being the east fractional half of the south-east fractional quarter of fractional section fifteen, township thirty-seven north, range two east, in Washington county. To support his right to a recovery, the plaintiff introduced the evidence taken before the register and the receiver at the land office at Jackson, Mo., in support of his right to a preemption; also the receipt of the receiver and the certificate of the register. All these were dated July 3, 1847. The plaintiff also adduced in evidence a patent dated May 4, 1854, to himself of the land thus preempted. Here the plaintiff closed.
    The defendants then introduced in evidence against the objections of plaintiff a transcript from the office of United States recorder of land titles. This transcript contained the following: 1. A notice of claim given by John Perry, sr., to the recorder of land titles. This notice was dated October 3, 1807. In this notice Perry stated that he claimed “ as assignee of Bazil Vallé six hundred and thirty-nine acres of land situate at Mine á Breton, in pursuance of the inhabitation and cultivation made on the said land by the said Vallé conformably to the laws of the United States made and provided,” &c. 2. A deed from Vallé to John Perry, sr., conveying a tract of land described as follows: “ All my right, title and claim to my .settlement at said mines, to include the house in which I now live, together with my garden anfL the lot of ground heretofore improved by me, supposed to be ten acres, more or less, with an out-house annexed to said tenement,” &c. This deed purported to be dated March 18, 1806. 3. Minutes of board of commissioners under act of Congress. These minutes were dated December 5, 1807. They showed that Perry appeared before the board and produced the above notice and deed and testimony showing that Vallé had possessed and cultivated said land from 1792 up to the date of the deed to Perry. The court did not act upon the claim. 4. Minutes of proceedings of commissioners, December 27,1811. The claim was again presented and the board decided that the claim “ ought not to be granted because it appears Bazil Vallé claims another tract of land under concession.” 5. Minutes of testimony in the form of affidavits submitted to the board of commissioners December 3, 1833, by John Perry as legal representative of Vallé. The board made no order and gave no opinion respecting the same. 6. A deed of relinquishment dated August 7, 1834, executed by John Perry and wife to the United States. In this deed the claim of Vallé, the notice to the recorder, the deed from Vallé to John Perry, sr., a deed dated January 18, 1819, from John Perry; sr., to Wm. M. Perry and John Perry, a deed of release from the heirs of Wm. M. Perry to John Perry, dated December 7,1825, were recited. After these recitals the deed proceeds as follows: “ do hereby — and in consideration of the privilege of preemption intended to be conferred on us, the party claiming to hold said tract of land, by the provisions of the third section of the act of Congress approved on the 9th of July, 1832, entitled £ An act for the final adjustment of private land claims in Missouri,’ and the supplementary act thereunto of March 2, 1833, enti-ted ‘ An act supplemental to the act entitled an act for the final adjustment of land claims in Missouri’ — forever waive, release, renounce, relinquish and surrender unto the United States of America all the right, title, interest and claim which we, the said John Perry and Eliza M., his wife, allege and assert or believe to have acquired, or had at any time alleged and asserted or belived to have acquired unto the tract above described.”
    M. Erissell, sworn as a witness, stated, against the objection of plaintiff, that he had seen a plat of a survey made by John Stewart, purporting to be made in 1806, of the tract of land claimed by John Perry under the notice filed with the recorder in 1807; that it included the tract in controversy, also the town lot upon which Perry lived ; that he, witness, had made diligent search for said plat among the papers of John Perry and could not find it; that a store in which Perry kept many papers was destroyed by fire in 1843.
    The defendants offered in evidence the report of the register and the receiver of the land office at Jackson, Mo., to the commissioner of the general land office. The report was dated September 16,1842, and was made upon the claim of Perry to preemption under the acts of Congress of July 9, 1832, and March 2, 1833. This report recited the following facts: the deed from Vallé ; the presentation of the claim of Perry to the board of commissioners agreeably to a plat of survey made by John Stewart (which plat was mentioned in the report as accompanying it) ; the rejection of the claim by said board ; that on the 16th of July, 1825, William and John Perry, claiming under said settlement right acquired of Bazil Vallé, had confirmed to them under the act of June 13, 1812, and May 26,1824, by the recorder of land titles, a town lot and out-lot in the village of Mine á Breton, which lots were included in the original survey made by Stewart and upon which town lot the dwelling of said Perry is situated ; that on the 2d December, 1820, notice of the claim of said Perry was filed in the land office and .the land marked out as reserved from sale on the plat on file by red dotted lines ; that on the 3d of December, 1833, John Perry, jr., again presented his claim and submitted further testimony to support it; that the board made no decision; that on the 7th of August, 1834, Perry relinquished to the United • States in conformity to the plat of Stewart above mentioned ; that on or about the 1st of September, 1834, Perry made application to the register to make his entry of said land, but was not permitted to do so because the public surveys were then incomplete ; that soon after the completion of the survey, in June, 1836, Perry again made application to enter, but was informed by the land officers that the law by which the right to enter accrued had expired ; that Perry then applied to the commissioner of the general land office, who, on the 28th of September, 1839, ordered the entry to be made provided the officers at the land office at Jackson should be satisfied, from the proof submitted, that he (Perry) was entitled to the benefit of the law under which he claimed ; that in pursuance of said order Perry was permitted, on the 26th of November, 1839, to enter ; that he clearly established the fact that he was an actual housekeeper and cultivator upon the claim of Bazil Tallé as presented before the board of commissioners ; that his dwelling-house and field in cultivation were situated upon the claim as surveyed by Stewart in 1806 and as reserved from sale upon the original plat in the land office. The register and receiver then enter upon an argument to show that Perry had a right of preemption and that he made his application in time, and that his entry should not be can-celled. The plaintiff objected to the admission of this report on the ground that it was not competent to prove the facts recited in it. The court overruled the objection and admitted the report.
    The defendants then introduced in evidence, against the objection of plaintiff, a certified abstract from the office of the register of the land office at Jackson, Mo. Prom this it appeared that on the 15th of November, 1889, Perry had entered the land in controversy as preémptor under the act of Congress of July 9,1832. Upon the face of the abstract the entry was marked as cancelled. Also a letter from the commissioner of the general land office to the register and receiver at the land office at Jackson, dated September 28, 1839. In this letter the commissioner states that if Perry made his application to enter as early as September, 1834, and if the entry had not been made only because of the want of the requisite survey, then Perry should be allowed to enter the same whenever the surveys were returned, if the officers should be satisfied from the proof that he was entitled to the benefit of the law.
    The defendants then, without objection, introduced in evidence certificates of confirmation, issued by Recorder Hunt, under the act of May 26, 1824, to William M. Perry and John Perry as representatives of John Perry, sr., for a village lot in the Tillage" of Mine a, Breton and for an out-lot of said village containing about fourteen arpens ; also surveys thereof by the United States approved April IT, 1847. It was admitted that John Peny’s residence, at the time of his deed of waiver, and before that, and down to the time he left the county of Washington, was on the town lot confirmed to him under Vallé in 1825, and that no part of his improvements extended over-the line of his confirmation as surveyed, except part of a field lot, which it was proven did extend over the lines of the confirmed tract and on the tract which he claimed by preemption.
    The defendants here closed. The plaintiff, in rebuttal, introduced in evidence the opinion of the solicitor of the treasury given to the commissioner of the general land office upon the right of John Perry to a preemption under the act of Congress of July 9,1832. This opinion was dated January 21, 1843, and was adverse to the claim of Perry. The decision of the commissioner of the general land office was also introduced ; also that of the secretary of the treasury. The ground taken in these opinions and decisions was that the third section of the act of July 9, 1822, gave the right of preemption only to actual settlers, being housekeepers, on the land sought to be entered, and that Perry was not such settler or housekeeper.
    The court found the facts substantially as follows: That John Perry, as assignee of Bazil Vallé, gave notice, October 3, 1847, to the recorder of land titles of his claim to six hundred and thirty-nine acres of land situate at Mine & Breton, in pursuance of the inhabitation and cultivation of said Vallé ; that On the 5th of December, 1807, the claim was presented to the board of commissioners with evidence to support it, but it was not acted upon; that on the 27th of December, 1811, said claim was again presented and rejected on the ground that it appeared that Vallé claimed another tract under concession; that in 1825 William Perry, having all the title conveyed by Bazil Vallé to John Perry, sr., obtained certificates of confirmation from Recorder Hunt under the act of May 26, 1824, for a village lot in Mine it Breton and for an out-lot of two by seven arpens; that on the 3d of December, 1883, John Perry appeared before the board of commissioners and presented his claim for six hundred and thirty-nine acres, and offered evidence in support thereof, but the board did not act thereon ; that on the 7th of August, 1834, Perry executed a deed of relinquishment to the United States waiving his claim to a confirmation under Vallé ; that John Perry’s residence and house where he lived was situate within the boundary lines of the survey of the tract confirmed to him on the 16th of July, 1825 ; that John Perry, claiming the right of preemption by virtue of his relinquishment and waiver, was permitted to enter as preemptor at the land office at Jackson, on the 26th of November, 1839, the tract of land in controversy, which tract was within the boundary lines of the tract of land claimed by Perry and released by him under his deed of waiver ; that the entry made by Perry was cancelled by the commissioner of the general land office on the 5th of May, 1843, on the ground that Perry’s residence and house being on the land confirmed to him and not on the land he was permitted to enter, he was not entitled to enter said land as a preemptor; that this decision was concurred in by the secretary of the treasury on the 3d of November, 1843 ; that on the 3d of July, 1847, the plaintiff in this cause applied at the land office in Jackson, Mo., and made proof of his right to a preemption on the land in controversy in this suit, and was permitted to enter and did enter the same as a preemptor, and received his duplicate receipt for the purchase money ; that said entry was duly certified to the general land office; that on the 4th day of May, 1854, the land was patented to said John O’Brien ; that the defendants are in possession of the land ; that the register and receiver at the land office in Jackson made a report to the commissioner of the general land office in relation to the claim of said Perry; that the town lot and the fourteen arpent out-lot and the balance of the six hundred and thirty-nine acres were all connected and included in a survey made by one Stewart in 1806 and prior to the confirmations in 1825. The court declared as a conclusion of law “ that Perry, by virtue of his waiver and relinquishment of his claim as above, became entitled to a preemption of the land in controversy and that the cancellation of his certificate of entry was an act contrary to law and void.” The court gave judgment for defendants.

      Noell, for appellant.
    I. The plaintiff made out a clear title. The question is, have the defendants made a case sufficient in law to defeat the prima facie title of plaintiff. Perry’s claim was not one of that class of claims provided for by the act of July 9, 1832. At the dates of the acts of July 9, 1832, and March 2,1833, Perry had no “ unconfirmed claim’.’ that fell within the provisions of said acts. His claim had been confirmed in 1825. He could not make a claim afterwards by nullifying the confirmation and reconveying to the United States. Those acts did not embrace his claim. The board had no authority to examine it, pass upon it, or classify it. He could not have two confirmations, each based upon the same settlement. (19 How. 202; 16 How. 86.)
    II. The claim was not reserved from sale by the act of July 9, 1832. No claims were reserved except those classified either in the first or second class. To be reserved after the act expired, it was necessary that it should be classed in the first class. Those not so classed are not reserved. Those waived are not reserved. If Perry’s claim was reserved from sale, the act of July 9, 1832, together with Perry’s waiver restored it to market. It gave him a preemption if he brought himself within the provisions of the law as a housekeeper residing on the land, and upon failure to do so the land was open to entry by others. By the waiver all the benefits and privileges of the law of July 9, 1832, were wholly abandoned and gone, excepting the privilege of preemption. Ho made his election to take the benefit of the preemption privilege and on this privilege he rested his whole case. Thei’e is no proof in this case that Perry ever presented to the land office at Jackson his proof of preemption or his deed of relinquishment. The report of the officer to the commissioner is no legal evidence of that fact, and the court erred in admitting it. If Perry’s claim was reserved, it was under the acts of 1811 and 1818, and according to the provisions of these acts Congress has disposed of the claim. It was confirmed in 1825. There was an interruption of reservation from sale from the 29th of May, 1829, to July 9, 1832. Unless Perry’s claim was reserved by the act of 1832, it was not reserved at all. (15 How. 525.) There is no evidence in the case that the tract in controversy is embraced in Perry’s claim as relinquished by him under the act of 1832. Mr. Erissell’s statements do not prove this. Stewart’s survey was not made until 1836. The commissioner of the general land office and the secretary of the treasury, in determining the validity of entries, preemptions and other preliminary questions in reference to the disposal of the public domain, act as judicial officers to that extent, and may determine questions of fact upon evidence and questions of law upon the facts. Their decision, unless superinduced by such fraud as would constitute the fraudulent party a trustee for the party injured, is final. The decision upon Perry’s claim concludes him. (18 Howard, 87.) Admitting, what no legal evidence establishes, that Perry’s first application was made September, 1834, the act did not expire until some time in 1835. It is nowhere shown that from the first application in 1834 till the expiration of the law the surveys remained incomplete so as to prevent Perry’s making the entry during the existence of the law. For all that appears, the surveys may have been completed within ten days after Perry’s first application.' ‘ The points made and decided in the case of Perry v. O’Hanlon, 11 Mo. 585, are not the same as those raised in this case. At that time the supreme court of the United States had not decided that all reservations from sale were removed from May 29, 1829, to July 9, 1832. (See Delaunier v. Emerson, 15 How. 525.) Tlie court seems to have taken it for granted that this land was expressly reserved from sale by the act of July 9, 1832. Claims not classed are nowhere reserved. (See Stoddard v. Chambers, 8 How. 364.) The most extreme construction of the law in favor of claimants could not maintain a reservation longer than July 4,1836. The sale to plaintiff was long subsequent to July 4, 1836. In Perry’s case no plat accompanied the notice filed with the recorder in 1807. (See Menard’s heirs v. Massey, 8 How. 293.) The defendants have failed to show the validity of Perry’s entry in 1839 ; their whole defence must therefore fall. (18 How. 87.)

      Frissell and Gantt, for respondents.
   Scott, Judge,

delivered the opinion of the court.

We regard this case as falling within the reasoning of that of Perry v. O’Hanlon, 11 Mo. 585. Indeed it is a part of the same transaction. The merits of the controversy are all on the side of the appellees. It is in vain that we seek in the record any reason why, after the claimant under whom the appellees hold had been permitted to prove up his preemption and enter the land in suit, as he had a right to do, the officers of the government should have taken it from him and granted it to the appellant on the same terms on which it had been previously conveyed. The United States, it is clear, derived no advantage from the transaction, nor would their interests have been affected by suffering the first entry to remain. Relying on the reasoning in the case to which reference has been made, we will only notice some of the objections which have been urged by the appellant against the correctness of the judgment of the court below.

We premise that the validity of the original claim under which the appellees derive title, and the question whether that claim would or would not have been confirmed, are not involved in this controversy, for it may be conceded that it would not have been confirmed without affecting the judgment to be given. The question is, whether it was a claim within the meaning of the first section of the act of Congress of March 2,1833, which was supplemental to the act for the final adjudgment of land claims in Missouri, approved July 9th, 1832. If it was a claim under that act, then, as it was relinquished by the claimant in pursuance to the provisions of the third section of the last named act, it ceased to be subject to the disposition of the officers of the general government, and the land stood reserved for the benefit of him who made the relinquishment; and it is needless to inquire at this day whether the claim was a good one, for, as Congress could give away the land, it could dispose of it on terms.

That this was a claim within the meaning of the first section of the act of March 2, 1833, is evident from its face compared with the words of the law. By this act, the commissioners, appointed under the act of July 5th, 1832, were authorized to consider, decide and report upon every claim to a donation of land in the state of Missouri held by virtue of settlement and cultivation. Now the claim was for land in pursuance to inhabitation and cultivation made thereon conformably to the laws of the United States, and was dated on the 3d of October, 180T. Whether the claim embraced the land in controversy was a question to be determined by the board of commissioners; and, as the claimant, in pursuance to law, waived an investigation of that question and all others, and submitted to pay for a preemption and did pay for it, his right thereto could not afterwards be annulled by any act of the officers of the government. This was a compromise between him and the government; and, after he had made a relinquishment of his right and paid the purchase money in pursuance to law, the act could not be revoked. Let it be borne in inind that the officers of the government, in annulling the entry, did not base the right to do so on the ground that it had not been made within the time prescribed by law, but because the claimant was not an actual settler. The officers of the United States had admitted that the preemption had been proved up within the time contemplated by law.

From this view of the subject, it is manifest that there can be nothing in the objections that the claim was not within the first section of the act of July 9th, 1832; that it was un-surveyed ; that it had been forfeited; was subject to entry and sale, and might have been sold like any other public land. Even if these objections could affect the claim, on what ground can the appellant avail himself of them, as he did not enter the land until after it had been entered and paid for by the claimant ?

We do not feel the weight of the objection, that a portion of the claim was confirmed under the act of 26th May, 1824, by the recorder of land titles. If a portion of a tract of land is confirmed by the terms of a general law — for instance, a village lot, under the act of 13th June, 1812, being a portion of a larger tract, the whole of which is claimed, we will suppose, under the second section of the act of March 3, 1807, respecting claims to land in the territories of Orleans and Louisiana — what is there to prevent a party from prosecuting the remainder of his claim ? If Congress will confirm a portion of a claim by one law, and afterwards confirms the rest of it by another law, why should not a party be allowed the benefit of both laws ? It has never been considered that a claimant, by availing himself of a confirmation of a part of his tract under one law, thereby made an abandonment of the rest of it, so that he could not claim the benefit of a future law confirming it. In this connection, how unreasonable was it that the officers of the government should hold that, because the portion of the tract on which the claimant was settled was confirmed by one law, therefore he was no actual settler on the portion that was not confirmed; thus making two tracts out of one, because they were confirmed by different acts of Congress ! But, as to the objection that the claimant was not an actual settler on the land, it is clear that the instructions contained in the second volume of the work entitled “ Public Lands,” printed in 1838, by the senate, (pages 749, 750,) show that a claimant, who relinquished his claim, was entitled to a preemption under the act of July 9,1832, although he was not an actual settler. This is the correct interpretation of the act, independently of any instructions, as is obvious from its language.

We do not regard this case as falling within the influence of the principle, that where a patent for land is issued by the officers of the United States, the presumption is that it is valid and passes the legal title. This is well settled law; but the very case on which reliance is placed to support it (Winter v. Crommelin, 18 How. 87) gives the qualification of the rule, and maintains that this presumption may be rebutted by showing that the land is not subject to entry and grant. This case is clearly,within the qualification of the principle, and presents the question — if one has a claim, and the law proposes to him, that, if he will relinquish it, he shall be entitled to a preemption on the land claimed, and he accept the proposition, and afterwards the preemption is allowed and the land entered — whether the entry can be cancelled. In such case, would not the bare relinquishment of the claim place the land beyond the control of the officers of the government so long as the claimant was ready and willing to comply with the terms of the compromise ?

It has been before observed, that it was not considered material whether the claim had been reserved or not from sale by any act of Congress, as we deemed it sufficient if it was a claim at the date of the act of March 2,1833. But in making this concession we did not intend to admit that the claim was of so little merit that it had never received so much consideration from the government as to be reserved from sale. The act of Congress of March 3, 1811, section 10, reserved all tracts of land the claim to which had been duly presented to the recorder of land titles; and the act of February 17,1818, establishing additional land offices in the teri'itory of Missouri, continued this reservation. In pursuance to instructions framed under this act by the secretary of the treasury, the claim in this case was marked as reserved from sale on the books of the register and receiver at Jackson, in this state. Affirmed;

Judge Napton concurring. Judge Bichardson gave no opinion.


author: Napton, Judge,

text:
    Milburn el al., Plaintiffs in Error, v. Hardy, Defendant in Error.
    1. The surrey of the outboundary line of the town of St. Louis — the plat of which is commonly known as “ Map X” — is not conclusive upon persons claiming title under confirmations by virtue of the first section of the act of Congress of June 13,1812; said act is operative to confirm to individuals common field lots and out-lots as well without as within said outboundary line as established by said survey.
    2. The certificates of confirmation issued by Recorder Hunt under the act of Congress of May 26, 1824, are prima facie evidence of title by virtue of the act of Congress of June 13, 1812, as against persons claiming by title emanating from the Hnited States in the year 1820.
    3. S,o also surveys by the United States of the lots embraced in the certificates issued by Recorder Hunt under said act of May 26, 1824, are admissible in evidence as against persons claiming by titles acquired from the United States prior to the passage of said act of May 26, 1824.

      Error to.St. Louis Circuit Court.

    This was an action of ejectment brought by William Mil-burn and others, as commissioners appointed by the St. Louis county court under authority of an act of the general assembly of March 8, 1851, to recover possession of part of fractional section sixteen, in St. Louis township. At the trial, the plaintiffs adduced the following evidences of title: 1. An act of Congress of March 6, 1820, entitled “An act to authorize the people of the Missouri territory to form a constitution and state government, and for the admission of such state into the Union on a footing with the original states, and to prohibit slavery in certain territories.” 2. An ordinance, passed on the 19th of July, 1821, by the representatives of the people of Missouri in convention assembled, declaring the assent of the people of the state of Missouri to certain conditions and provisions of said act of Congress of March 6, 1820. 8. An act of the general assembly of the . state of Missouri approved March 3,1851, entitled “ An act to authorize the sale of fractional section sixteen, township forty-five north, range seven east.” 4. An order of the St. Louis county court made April 11, 1851, appointing the plaintiffs commissioners under said last mentioned act. 5. Field notes of Brown’s survey, made in 1818, of fractional section sixteen. 6. An authenticated plat of township forty-five north, range seven east, certified by the surveyor general of Illinois and Missouri, on the 17th of March, 1845, to be a true copy ; and an authenticated plat and description of the survey of the outboundary of the town of St. Louis, as established by the surveyor general. 7. It was agreed that the land in controversy lay without the exterior limits of said outboundary survey; also that at the commencement of this suit defendant was in possession of a part of said fractional section sixteen.
    The defendant, to maintain the issue on his part, read in evidence the act of Congress of June 13, 1812; also the act of Congress of May 26, 1824. The defendant then offered in evidence the proceedings of recorder Hunt under said act of May 26, 1824, in respect to the claim of Louis Laroche’s representatives. The plaintiff objected to the admission of the same and insisted that the same was incompetent; “ first, because, in so far as said proceedings can in anywise affect the land now in controversy, the same were had and the proofs therein taken without any notice to the state of Missouri, to the inhabitants of township forty-five, or to the plaintiffs; second, because said proceedings, so far as they affect the land in dispute, were repugnant to the constitution of the United States and of the state of Missouri, and in derogation of the sovereignty of the latter.” The court overruled the objection and admitted the proffered evidence. The evidence thus admitted consisted of Hunt’s minutes of testimony taken in 1825 under the act of Congress of May 26, 1824, in support of the claim of Louis Laroche’s representatives to a lot of one by forty arpens in the Grand Prairie of St. Louis; also an extract from Hunt’s list of certificates of confirmation issued under said act. From this it appeared that a certificate of confirmation had been issued to Laroche’s legal representatives. The defendant also introduced in evidence an extract duly authenticated, from the list of confirmations furnished by recorder Hunt to the surveyor general.
    The defendant then tendered in evidence a paper purporting to be a survey, duly certified by the surveyor general, of the lot of Louis Laroche’s representatives as proved before recorder Hunt in the proceedings just set forth above, being United States survey No. 1665. The plaintiffs objected to the admission of this paper, because, “1. The survey, in manner and form as the same appeared to have been made, was not authorized by law. 2. Said survey embi'aced the land in controversy, which the United States had absolutely sold and granted to the state of Missouri more than thirty years before the date of such survey.” The court overruled the objection and admitted the survey. Said survey was approved May 23,1857.
    The defendant then gave in evidence, without objection, a confirmation certificate issued to Laroche’s representatives by Adolph Renard, United States recorder of land titles, on the 3d of September, 1857.
    The defendant then offered the deposition of Jacques Noisé to prove that Louis Laroche, prior to December 20, 1803, cultivated the land in controversy as a lot in the Grand Prairie “ under circumstances causing the same to be confirmed by the first section of the act of Congress of June IS, 1812.” “The plaintiffs objected to the reception of said testimony on the ground that it was not competent for a party claiming under that section to adduce testimony to show that the subject of confirmation was situate beyond the outboun-dary line established by government.” The court overruled the objection and permitted the testimony to be read.
    It was admitted by plaintiffs, for the purposes of this suit, that all the title of Louis Laroche or his representatives in the land .in dispute had become vested in the defendant, and that said Laroche’s claim as separately surveyed covered the same.
    The court, of its own motion, gave the following instruction : “ By virtue of act of Congress of March 6, 1820, and the ordinance declaring the assent of the people of the state of Missouri thereto, dated July 19, 1820, whatsoever title the United States may have had in the land described in plaintiffs’ petition at the time of the passage of that act, if it be the sixteenth section or a fractional part thereof, passed to and vested in the state of Missouri for the use of schools; and by the act of the legislature of this state, approved March 3, 1851, and the order of the county court read in evidence (if you find that order genuine,) the plaintiffs have the right to sue for said land; and if you find that the defendant, at the commencement of this suit, was in the possession of any portion of said land, you should find for the plaintiffs, unless you believe defendant has shown a better title as hereinafter mentioned. So far as this case is concerned, the defendant admits that at the commencement of this suit he was in the possession of the premises described in the petition, and the plaintiffs admit that whatsoever title to the land in possession of the defendant may have been at any time in Louis Laroche was, at the commencement of this suit, and now is, vested in the defendant.” The court then, at the instance of the defendant, gave the following instructions : “ 1. If the jury find from the evidence that a tract of land, of which the premises in possession of defendant at the commencement of this suit are a part, was cultivated by Louis Laroche prior to December 20,1803 ; that said Louis Laroche was, at the time of such cultivation, an .inhabitant of the town of St. Louis; that said tract of land was situate in the Grand Prairie, in the neighborhood of said town, and was used by Louis Laroche for the purposes of cultivation, and was one of a series of lots of similar form and character also used by inhabitants of said town for the purposes of cultivation, and lying adjoining to each other in the same general range of lots, then the plaintiffs are not entitled to recover. 2. If the jury find from the evidence that on the 3d day of March, 1825, Louis Laroche designated the lot, of which the premises in possession of the defendant at the commencement of this suit are a part, as being confirmed to him by the act of Congress of June 13, 1812, entitled ‘ An act making further provision for settling claims to land in the territory of Missouri,’ on the ground of inhabitation, cultivation or possession prior to December 20, 1803, by proving before the recorder of land titles of said territory the fact of his cultivation and possession thereof and the boundaries [and] extent of said lot, and that said recorder did thereupon issue a confirmation certificate for said lot to said Louis Laroche, and furnish the surveyor general of said territory with a list of the lots so proved, in which list was that of the said Laroche, which lot was afterwards surveyed by said surveyor general and the survey thereof approved by him on-the 18th of March, 1857, and on the 17th of July, 1857, returned by him to the office of said recorder, who on the first day of August, 1857, issued his certificate of confirmation thereof, then the plaintiffs can not recover in this suit.”
    The court refused the following instruction prayed by plaintiffs: “ 1. The jury are instructed that the several matters of proofs adduced by the plaintiffs, if genuine, are effectual to show that the title to the land in dispute was vested in the state of Missouri on the 19th of July, 1820, and that the same title has become vested in the plaintiffs. 2. The jury are further instructed that the proceedings and proofs before recorder Hunt under the act of Congress of May 26, 1824, read in evidence by the defendant, have no force or effect as against the title of the state of Missouri acquired in the year 1820. 3. The jury are further instructed that the survey of the outboundary read in evidence is to be considered by them as the official and authenticated survey of the outboundary directed to be run by the act of Congress of June 13, 1812, binding on all parties claiming a confirmation by force of the first section of said act, and that all the evidence adduced by the defendant to show that the lot of Louis Laroche was situated on the land in controversy outside of the outboundary as marked by such survey ought to be disregarded by the jury.” The jury found for defendant.

      Field and Bates, for plaintiffs in error.

      Polk, for defendant in error.
   Napton, Judge,

delivered tlie opinion of the court.

One of the questions presented by this record is, whether the act of 13th June, 1812, confirmed any lot outside of the outboundary directed by that act to be run by the surveyor general; and upon this question it is deemed unnecessary to add any thing to what has already been said in the cases involving this point. (Milburn v. Hortiz, 23 Mo. 536 ; Tayon v. Hardeman, 23 Mo. 539 ; Schultz v. Lindell, 24 Mo. 567.)

The only question discussed in this case was the admissibility of the proceedings before the recorder of land titles (Hunt) under the act of 26th May, 1824, and the certificate of his successor (Eenard) of a confirmation to Laroche of the lot in controversy under the act of' 13th June, 1812, and the survey made by the surveyor general of the United States or under his directions in 1855. This testimony was objected to because it was all made under a law passed subsequent to the consummation of the plaintiffs’ title and without any notice to the state of Missouri or the plaintiffs claiming under the state, and because it was repugnant to the constitution of 'the United States and of this state, and in derogation of the sovereignty of this state.

By the act of 13th June, 1812, the United States was divested of all title to the property described in the first section of that act as confirmed to private claimants. The act was a grant, proprio vigore, and the title of each claimant under it was complete at its date, and he could maintain his ejectment upon mere proof of inhabitation, cultivation or possession, without any further or other evidences of title. In 1824, however, Congress, with a view to prevent the embarrassment which claimants under the act of 1812 would necessarily experience from a dependence on the fleeting memory and uncertain lives of witnesses, and to furnish to the government also the means of distinguishing the public from the private lots, authorized the recorder of land titles to receive proof from the claimants of their cultivation, inhabitation or possession, and the extent and boundaries of the same, and to issue certificates of confirmation to such persons as made satisfactory proof thereof. It was to promote the convenience of claimants that this act directed them to appear before the recorder within a limited period and make their proofs, so that the recorder could give them certificates of confirmation. Upon these certificates, by an act of the legislature of Missouri, an action of ejectment could be maintained; and, by the decisions of the courts here, they have been held prima facie evidence of title in the claimants under the act of 1812 against all the world, and conclusive on the United States and the claimants who accept them. But. the act of 1824 also had in view the convenience of the government in procuring a distinct designation of the public property within the towns and villages subject to be reserved for military purposes or to be subsequently appropriated to the use of schools. For this purpose the recorder was directed to furnish his list of confirmations, with their extent and boundaries, to the surveyor, to serve him as a guide in discriminating the private from the public lots, the latter of which he was expressly ordered to survey.

The act of 13th June, 1812, did not contemplate any survey of the private lots, probably on the supposition that they had been already surveyed or designated under the former government, or could be easily distinguished by their occupation or cultivation. But the act of April 29,1816, expressly required a survey of all confirmations made previous to its passage, as well as all which might thereafter be made. The act of 1824 does not in express terms order a survey of the private lots, perhaps for the reason that the act of 1816 had already directed it; but as the surveyor was, even under the act of 1824, required to distinguish the private from the public lots, and expressly required to survey the latter, it might be inferred that the performance of the duty expressly enjoined necessarily implied a survey of each class of lots. However this may be, as the act of 1816 undoubtedly gave the authority to.survey the private claims, it is not material that such authority should be construed to be a second time conferred upon him by the act of 1824. The practice, it is believed, has been, after the date of the act of 1824, for the surveyor to have the common field lots as well as the commons surveyed, either by virtue of this last named act or the preceding one of 1816 ; and such surveys have been regarded as legitimate evidence in the courts of this state and the federal courts. A survey of the commons, it is true, was expressly directed by the act of 1824, but it was only in cases where they had not been previously surveyed. If the certificates of confirmation be admissible to prove a title under the act of 1812, we can see no reason for excluding the surveys. Both are made after all interest in the property had passed from the government. It may be conceded that the admission of either is somewhat anomalous in principle, but it has received the sanction of the courts for so great a length of time that to call it in question now would be dangerous to the stability of important interests resting on the faith of their decisions.

There is no distinction between the title to commons and that to field lots or town lots, so far as this question is concerned. A survey of the St. Louis commons, made in 1832, twenty years after the United States had parted with all interest in the land within the survey, has uniformly been received in evidence as prima facie proof of the extent and boundaries, not only against the United States but all opposing claimants deriving title therefrom. This practice has 'received the sanction of the supreme court of the United States in several cases.

In the case of Jones, adm’r, v. Gurno, 6 Mo. 330 — a case decided nearly twenty years ago — the same positions now assumed in opposition to the admissibility of this kind of testimony under the act of 1824 were taken by Mr. Geyer and fully discussed, and, I need hardly add, with great ability. It was urged then, as now, that this evidence was ex parie in its character, and was not designed to, and could not, in its nature, affect private claimants, however conclusive it might be on the government, and that the United States could not invest one of their subordinate executive officers in Missouri with quasi judicial functions to pass upon the validity and fix the locality of titles which had years before entirely passed from that government, and on which it had ceased to have any control. But the court considered the matter then as res adjudicaba — Judge Tompkins, indeed, further maintaining that these certificates were not merely prima facie but conclusive evidence upon all parties concerned. This, too, it will be observed, was in case where the certificate of confirmation given by recorder Hunt was used against a title emanating from the same act of 1812. So, in Soulard v. Allen, 18 Mo. 595, the certificate was used against a title originating under the act of 1816. The adverse titles in both cases, against which the certificates were used, had their inception and consummation prior to the act of 1824, under which the evidence was taken.

It is plain that the certificates of confirmation and surveys under the act of 1824 can avail nothing unless they are allowed to show title in 1812. They do not purport to do any thing else. They do not profess to grant land at their date or to certify that land was granted at their date, but that the confirmations were made in 1812 and by virtue of the act of 18th June of that year. They must therefore either be admitted to prove that, or go for nothing.

As the plaintiff in this case offered no evidence in rebuttal of the prima facie case made out by the defendant, the instructions given by the court were proper. The evidence being prima facie, was of course conclusive in the absence of any proof to the contrary.

The judgment is affirmed;

the other judges concur.


text:
    Milburn et al., Plaintiffs in Error, v. Carpenter, Defendants in Error. Milburn et al., Plaintiffs in Error, v. Blanchard, Defendant in Error. Milburn et al., Plaintiffs in Error, v. McClure, Defendant in Error. Milburn et al., Plaintiffs in Error, v. Hogan, Defendant in Error.
    1. Milburn y. Hardy, ante p. 614, affirmed.

      Error to St. Louis Circuit Court.

   Napton, Judge,

delivered tbe opinion of the court.

These cases all involve precisely the same questions determined in the case of Milburn and others v. Hardy, at the present term. The judgments are consequently affirmed.


text:
    Milburn et al., Plaintiffs in Error, v. Hortiz, Defendant in Error.
    1. Tbe survey of tbe outboundary line of tbe town of St. Louis — the plat of which is commonly known as “Map X” — is not conclusive upon persons claiming title under confirmations by virtue of the first section of the act of Congress of June 13,1812; said act is operative to confirm to individuals common field lots and outlots as well without as within the said outboundar ry line as established by said survey.

      Error to St. Louis Land Court.

      Bates and Field, for plaintiffs in error.

      Todd and Morehead, for defendant in error.
   Napton, Judge,

delivered tbe opinion of the court.

The record in this case presents the single point touching the conclusiveness of the outboundary survey against any proof of common field lots, not embraced within it, and the case will therefore be disposed of in conformity to previous decisions on this point. The judgment is affirmed.


author: Richardson, Judge,

text:
    Dunnica, Respondent, v. Coy et al., Appellants.
    1. Where a party purchasing land causes the legal title to he placed in a third person with a view to defraud his creditors, there will be a resulting trust to himself for the benefit of such creditors, and this interest may he seized and sold on execution under a judgment against him in favor of one of those creditors; the purchaser may then, in a proceeding for that purpose, and upon establishing the alleged fraud, have a decree vesting the legal title in himself and for the possession of the land.
    2. Where a sheriff receives a writ of execution and does not levy the same during his term of office, it is his duty, at the expiration of his term, to deliver said writ to his successor in office, whose duty it is to receive and execute the same.

      Appeal from Chariton Circuit Court.

    This was an action in the nature of a suit in equity. The plaintiff is William E. Dunnica; the defendants are John Coy, Elizabeth Coy, Collins Coy, and John Prewitt. The . plaintiff in his petition alleged substantially as follows: that John Coy, while insolvent and indebted to plaintiff and other persons, acquired an interest in certain slaves ; that, to defraud his creditors, he sold said interest to his brother Collins Coy and received in exchange certain land; that, in order to 4efraud, hinder and delay his creditors, he caused said Collins Coy to make a title bond for the land to John Prewitt for the use of Elizabeth Coy, wife of said John Coy, and her children; that Collins Coy was privy to the fraud; that John Coy was afterwards put in possession of said land; that plaintiff obtained judgment against John Coy for his debt, and levied on and sold John Coy’s interest in said land, and became the purchaser himself and received a deed from the sheriff therefor. Plaintiff prays that the contract with Prewitt be set aside ; that Collins Coy be required to convey said land to plaintiffs upon the payment of the balance of the purchase money.
    Collins Coy alone answered. The sheriff’s deed mentioned in the petition was admitted in evidence against the objection of defendant, Collins Coy. The objection taken was that the successor of the sheriff who made the levy was not authorized to make the sale and execute the deed. This deed on its recitals are sufficiently set forth below in the opinion of the court. The court decreed title in plaintiff on the payment of the balance of the purchase money; also gave judgment for possession.
    Turner, for appellant.
    I. If the exchange of John Coy’s interest in the slaves for the land was fraudulent and void as to creditors, the title remained as before unaffected by this void transaction. A creditor in whose favor the contract is declared void can only subject to the payment of his debt the part of the property that would have been subject thereto had the exchange not been made. It would be unjust to let this creditor take the land and leave the others at liberty to take the slaves. (27 Mo. 167.) Besides, there was no proof of the alleged fraud. The failure of the other defendants to answer did not, as against Collins Coy, obviate the necessity of such proof. John Coy’s supposed interest was divested by the sheriff’s sale, and the interest of Mrs. Coy and Prewitt by the cancellation of the title bond. Their admissions would not be evidence against Collins Coy. (1 Stark. Ev. 332 ; 9 Cranch, 153 ; 1 Greenl. Ev. § 178.) Further, there was no lawful sheriff’s sale and conveyance. Only the sheriff that levied the execution was authorized to make the sale. Executions that are levied are not unexecuted. (See 6 Monr. 32.)
    Shackelford, for respondent.
    I. Collins was cognizant of the fraud. .It is unimportant whether he was or not. (See Rankin v. Harper, 23 Mo. 579 ; Dunniea v. Coy, 24 Mo. 167.) The sheriff’s deed is valid. (See 1 Monroe, 94 ; 3 Monr. 272 ; 4 Monr. 465; 13 Pick. 477.)
   Richardson, Judge,

delivered the opinion of the court.

It is recited, in the sheriff’s deed under which the plaintiff claims, that the execution was issued on the first day of April, 1854, directed to the sheriff of Chariton county, and delivered to Henry H. Davis, who was at that time sheriff of the county ; that Davis levied the writ on the land in controversy, but that Robertson Moore, the successor in office of Davis, advertised the land for sale, conducted the sale, and made the deed to the plaintiff. The defendant insists that the deed is void for the reason that the execution was delivered to and levied by one sheriff, and the sale was made by his successor.

It does not appear how the sheriff, who first received the writ, had levied it. He did not advertise the land for sale ; and as ho was not required to make an actual or symbolical seizure of it, (Wood v. Colvin, 5 Hill, 228,) it is difficult to perceive how he had made a levy at all; and it may be inferred from the circumstances that he did nothing more than indorse on the writ that he had levied it on the land in dispute. The writ, then, was not executed within the meaning of the statute, but was in a condition that authorized the sheriff, who received it, to deliver it to his successor, as provided by the fifty-second section of the execution law of 1845, which declares that “ whenever the term of office for which any sheriff shall have been elected has expired, or he shall have resigned or removed without the county, or be removed from office, it shall be his duty to deliver over all writs of execution not executed to such person as may have been elected, or appointed, and qualified to discharge the duties of sheriff; and such new sheriff shall receive all such writs and proceed to execute the same in the same manner as if such writs had been originally directed to him.”

The right of the plaintiff to recover upon proof of the allegations in his petition was established by the principle decided in the case of Rankin v. Harper, 23 Mo. 579; and we think the evidence was sufficient to warrant the decree. The judgment will therefore be affirmed, the other judges concurring.


author: RichaRDSON, Judge,

text:
    Wood et al., Appellants, v. Squires, Respondent.
    1. If the plaintiff in an attachment suit file an insufficient bond, he has the right to file another.
    2. In an attachment suit commenced in the names of the members of the firm of “ Wood, Bacon & Co.,” the attachment bond purported to be the bond of “Wood, Bacon & Co." as principals and “Northup & Co.” as securities, and was signed thus — “Wood, Bacon & Co. [seal], by their attorney, P. S. Brown [seal]; Northup & Co., by H. M. Northup [seal]” — held, that the attachment bond was not a nullity and should not be treated as such.

      Appeal from Kansas City Court of Common Pleas.

    This was a suit by attachment brought by Richard D. Wood and others, members of the partnership firm of “Wood, Bacon & Co.” The attachment bond commenced thus: “ We, ‘Wood, Bacon & Co.,’ by our attorney, P. S. Brown, as principal, and ‘ Northup & Co.’ as securities, acknowledge,” &c. It was signed as follows: “Wood, Bacon & Co. [seal], by their attorney, P. L. Brown [seal] ; Northup
      & Co., by H. M. Northup [seal].” Squires, the defendant, moved the court “ to dismiss the attachment” because no such bond had been filed as is required by law. The next day after this motion was filed, the plaintiffs filed another attachment bond, which was approved by the court. The court afterwards sustained the motion of defendant and dismissed the suit.
    Hovey, for appellants.
    I. The first bond was a good one ; it was at least the bond of P. S. Brown as principal, and H. M. Northup as security. (3 Johns. Cas. 307 ; 13 Johns. 306; 2 Greenl. R. 358 ; 9 N. H. 55 ; Story on Agency, p. 339.) Northup was bound. Whether the bond was sufficient or not, it was amendable. It was amended, and a satisfactory bond filed.

      Bolling, for respondent.
    I. A bond executed by the plaintiffs, or some one for them, and one or more securities, was necessary. The bond filed in this suit was not executed by the plaintiffs or any one else as principal. It is not pretended that Brown had authority under seal. It was not the bond of Brown.
   RichaRDSON, Judge,

delivered the opinion of the court.

The day after the defendant filed his motion to dismiss the suit and dissolve the attachment because the first bond was insufficient, but before it was disposed of, the plaintiff filed another bond, which was approved by the court; and, at that stage of the proceedings, the court erred in afterwards sustaining the motion. The first bond was not a nullity, and the ninth section of the attachment law permits the plaintiff to file a second bond, when the first is insufficient, or the surety therein has died or removed from the state, or has become or is likely to become insolvent. (R. C. 1855, p. 242, § 9; Vanandale v. Krum, 9 Mo. 397 ; Tevis v. Hughes, 10 Mo. 380.)

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