text:
    Kent & Obear, Appellants, v. Allen, Respondent.
    1. Where the owner of land sends- a real estate broker into market to dispose of it without any directions as to the title to be conveyed, he thereby gives assurance to the world that he has a valid title.
    2. The doctrine of marketable titles is a purely equitable doctrine.

      .Appeal from St. Louis Court of Common Pleas.

    Plaintiffs, real estate brokers, allege in substance in tbeir petition that the defendant, Allen, employed them to sell for him a certain tract of forty-ono acres of land ; that defendant represented to plaintiffs that be bad a good and perfect title to said land, and authorized and directed plaintiffs to sell the same for the sum of $41,000. on the following terms, &c.; that plaintiffs, relying upon said representations, and acting in accordance with the instructions given, bargained with one Meier for the sale of said land ; that defendant, Allen, did not have a good title to said tract of land ; and that by reason thereof said Meier refused to complete the said purchase. Plaintiffs elaim the sum of $1025, being 2J per cent, upon the purchase money, as a compensation for the labor performed by them.
    The cause was tried by the court. The finding of the facts by the court is as follows : “ That the plaintiffs are real estate brokers in the city of St. Louis ; that, as such, they undertook to sell the land in question for the defendant; that there was no special agreement between the parties as to what should be paid to the plaintiffs for their services ; that they negotiated a sale with Adolphus Meier for said land, the terms thereof to be one half cash, and the other half in three equal payments, at one, two and three years respectively ; that the. price to be paid therefor by said Meier was $41,000. The commission usually charged by real estate brokers at that time, when no special agreement for their services was made, was per cent, on the price at which the land is sold ; but when the sale is not consummated, the broker receives nothing. If, however, the negotiations are made, and tbe sale is not effected in consequence of a defective title, then there is no custom as to the rates of compensation, but each transaction is left uncontrolled by any custom. The court finds that in this case the defendant did, after the negotiations aforesaid had been made by the plaintiffs for the defendant, tender to said Meier the folio-wing deed, offered in evidence, but the said Meier declined completing the purchase, on the ground that he had been advised by counsel that said deed would not pass the title in fee simple to him, the said Meier. [Here follows a deed with covenants of warranty, conveying to said Meier the said tract of forty-one acres, described in the petition. This deed was executed by Thomas Allen, and his wife Ann R. Allen, and William Russell, and is dated September 1st, 1853.] The following marriage contract, and deed from Russell to Ann R. Allen, offered in evidence, are genuine, were duly executed by the parties thereto, as the same purport to have been and were duly recorded in the office of the recorder of St. Louis county. [Here follow said marriage contract and settlement, and said deed. The said marriage contract is dated July 6,1842, and was executed by Thomas Allen, Ann R. Russell, and William Russell, father of said Ann. The first, second and fourth articles of said contract are as follows : “ Article First. That all real estate, slaves, goods and chattels, and all property and effects whatsoever, by the said William Russell given, granted or conveyed, or which shall be given, granted or conveyed to the said Thomas and Ann, or either of them, or to their use, or the use of either of them as aforesaid, and the proceeds, rents, issues and profits thereof, shall beheld, used, enjoyed and disposed of according to the terms, clauses, stipulations, conditions, limitations and reservations in the deeds or writings conveying the same respectively contained, touching the parties or the tenure, use and enjoyment of the said estate and property therein and thereby respectively granted or conveyed, and not otherwise, except as herein afterwards specially provided. Article SecoND. That the parties hereunto (all concurring) may, at any time, during the continuance of said marriage, or in case oE the death of said husband or wife, the other surviving, such survivor and the said William Russell may sell, dispose of, grant and convey any of the estate, property and effects above mentioned or referred to, all the parties hereto, or in case of the death of either said husband or wife the survivor of them and said William Russell joining in such sale of other disposition, and in the deeds or conveyances thereof, and not otherwise, except where provision for such sale or disposition of any property is made in the deed or writing by which the same was conveyed to the said parties of the first and second part, or either, of them as aforesaid, in which case such sale and disposition may either be made according to the terms of such deed or writing, or as in this article above provided. ARTICLE Fourth. That the said William Russell, intending to provide further an annual income for said Ann, equal to the best lawful interest that can be had on twenty thousand dollars in money ; to accomplish which purpose, the said William Russell shall and will, from time to time, as soon as in his opinion it may be advantageously done, make investments of money in the purchase of productive real estate, to be selected by him within the county of St. Louis, amounting in the whole to $20,000 ; and upon such purchase being made, to make and execute such deeds, conveyances, assurances and covenants as shall be good and sufficient in law to assure the fee simple estate in the property so purchased in trust or otherwise, and to secure the payment of the rents thereof and the disposition of the estate in the manner following — that is to say: The payments of the rents, issues and profits (after deducting taxes and public charges and necessary expenses of repairs) semiannually to said Ann or to her written order, and to and for her sole and separate use during her natural life ; and in case said Ann shall die leaving a child or children surviving her, then such payment to be made to such child or children, until the youngest of them shall arrive at the age of twenty-one years ; at which time, or sooner, if all the children of said Ann then living shall be of the age of twenty-one years or more, the fee simple in said estate shall be vested in such surviving child or children of said Ann, and the descendants of such (if any) as shall before then have departed this life, in the same manner as if said Ann had died intestate seized in fee of said estate. In like manner, if said Ann shall depart this life leaving no child surviving her, but shall have a grandchild or grandchildren so surviving, then such payment to be made to such grandchildren of said Ann until the youngest attain the age of twenty-one years ; at which period, or sooner, after the death of said Ann, if all her grandchildren then living shall be of the age of twenty-one years or more, the estate shall be vested in them and their descendants as aforesaid. But if said Ann shall depart this life without leaving any children or grandchildren surviving her as aforesaid, or those surviving her shall die before the happening of the contingency by which the fee simple would be vested in them according to the provisions of this article, then the absolute estate in said estate shall revert to and be vested in said William Russell and his heirs and assigns forever.”
    William Russell, by said deed above mentioned, dated June 9th, 1843, conveyed to his daughter, Ann R. Allen, seven tracts or parcels of land, of which one was the tract of forty-one acres, the title to which is called in question in the present suit. This deed purported to have been made “ in consideration of the parental affection and regard of him, the said William Russell, for his said daughter, and his desire to promote and provide for her means of honorable support, and also in ful-filment of the purposes contemplated by a certain agreement, dated July 6th, 1842, signed by Thomas Allen, Ann R. Russell, (now Ann R. Allen,) and William Russell, &c., which said agreement is hereby referred to as part and parcel of this deed,” &c. The habendum of this deed is as follows: “To have .and to hold the above described seven tracts,- pieces or parcels of land, amounting in all to about the quantity of one thousand and eighty-five acres of land, be the same more or loss, together with all the improvements thereon, &c., to and for the sole and separate use of the said Ann R. Allen, during her natural life, and for the above and other good and valuable considerations and inducements ; and in accordance with the agreement aforesaid, this deed further witnesseth, that, from and after the time of the decease of the said Ann R. Allen, all and singular the above described seven tracts, pieces or parcels of land, with all the rights, privileges and appurtenances thereunto belonging, are hereby given, granted, bargained, sold and conveyed by the said William Russell, in absolute property, in fee simple, to such child or children of the said Ann R. Allen, if any, as may have survived her, and have attained or afterwards attain the age of twenty-one years, in equal shares to each, if more than one of such children, and to the descendants (if any) of such of them as shall have before then departed this life, the same share which such deceased child of the said Ann, if alive, would have held in the land aforesaid under this claim. To have and to hold the aforesaid seven tracts, pieces and parcels of land, with all the rights, privileges and appurtenances thereunto belonging, from and after the decease of the said Ann, to such child or children (if any) 'of her the said Ann R. Allen, and to the descendants of such of them as may have before then departed this life, as above provided, and to their heirs and assigns forever. No one of such children or their descendants shall claim, hold or control the fee simple estate in the lands above conveyed until such child or the descendants of such deceased child of the said Ann shall have arrived at twenty-one years of age ; but the share of such, with the incomes and profits thereof, shall be held and managed for the use of such minor, by a trustee to be appointed by the proper court having jurisdiction of such matters, until he or she, so being a minor, arrives at twenty-one years of age, when the fee simple of his or her share in said lands shall become absolutely vested in such child or children, or their descendants, of her the said Ann R. Allen. Rut if there be no child or children, or descendants of a child or children, of her the said Ann R. Allen surviving her, and who have obtained or live to obtain the age of twenty-one years, in that ease the title to all the aforesaid seven tracts, pieces or parcels of land, with all the rights, privileges and appurtenances thereunto belonging, shall revert to and become absolutely vested in fee simple in him the said William Russell and his heirs and assigns forever.”]
    It was admitted on the trial, that, prior to and at the date of the marriage contract and of the deed from Russell to Ann R. Allen, as aforesaid, the title in William Russell to the land in question was an undefeasible estate in fee simple, and that all the title Thomas Allen had or could convey in and to the said forty-one acres was such as the said Allen and his wife and said Russell had as aforesaid. The court further finds that the failure of the plaintiffs to complete the sale with Meier was not caused by any refusal or neglect on the part of the defendant to comply with the terms of sale on his part, he having tendered the aforesaid deed to Meier; nor did he when he employed the plaintiffs to negotiate a sale of the said land make any re - presentations to the plaintiffs as to the fee simple ownership of said land, or in whom the fee was, or what was the real title thereto. Whereupon the court declares that plaintiffs are not entitled to recover.”
    i?. M. Field, for appellants.
    I. The first point taken by the appellants is, that they were employed by the respondent to perform a particular service, and as that service, under the finding of the court below, has been fully performed, they are entitled to compensation according to the,general usage, by reference to which the contract must be construed. It is of no importance whether the service under the employment has turned out to be beneficial to the respondent or not. He was pleased to employ the appellants to find a purchaser for certain lands, just as he might have engaged them to do any other work or labor. If the performance of this service on the part of the appellants has resulted in showing that the respondent had no marketable title in the lands which he offered for sale, that may be Ms misfortune, but certainly it is not the fault of the appellants. They have done all that falls within the scope of their undertaking, and they have fairly earned their compensation.
    II. But if the plaintiffs were not entitled to the customary commission where the sale is carried out, they ought at least to receive a reasonable compensation for their labor, to be ascertained as in cases of quantum meruit.

    III. The respondent could not make a fee simple title to the land which he offered for sale. The deed of June 9,1843, was plainly made in pursuance of 4th article ; and the provisions of the 2d article did not extend to the property conveyed by it. Under that deed, the children and grand children would take not as heirs, but as purchasers.
    IY. But it is not material to the present case to inquire whether the title to the property was really such that the respondent, his wife, and father-in-law, might not in strictness make a conveyance that would turn out ultimately to be good. The only question here must be whether the title was a marketable one in the view of a court of equity, or, in other words, whether the court would have compelled the purchaser to complete the purchase under his contract ? Now, courts of equity in this respect never undertake to declare whether the title be absolutely good or bad; they content themselves simply with declaring that the title is or is not clear of reasonable doubt in point of fact and in point of law. If, on examination, it turns out to be matter of uncertainty in point of law, whether a clear title can be made to a piece of property, the title is adjudged unmarketable, and the purchaser is relieved of his contract. (See Price v. Strange, 6 Madd. 159 ; Atkinson on Marketable Titles.) It results from these authorities that the respondent was not justified in bringing into market a suspicious title — • that the purchaser was plainly in the right in rejecting this title offered to him, and that the appellants ought to be compensated for the costs and trouble incurred by them under the employment of the respondent, although the employment has resulted in no other benefit to him than to show the worthlessness of his title.

      Glover & Richardson, for respondent.
    I. The gist of the action was the misrepresentation of the respondent; and the charge having been negatived by the finding of the court, every pretence of a recovery was at an end..
    II. The court found that the appellants undertook to sell the land for the respondent, and their contract was not performed by doing any act short of effecting a sale. The respondent could only be responsible to them on the idea that they had rendered him a service, for he did not engage to pay according to the labor they might perform, but on the condition that they effected a sale.
    III.' The court having found that the appellant did not perform the service for which they contracted, they were not entitled to recover any thing. As the sale was not effected, and there was no custom as to the rate of compensation in cases where the sale fails for want of title, the plaintiffs could not recover ; for there was no proof whatever as to the value of their services in such cases.
    IV. The deed tendered to Meier conveyed a good title to the land. The deed of June 9th was not made to further any object contemplated.in the 4th article. That article is predicated on the idea that Wm. Russell had no productive property, for he does not agree to convey such,'but agrees to purchase productive real estate, and then to settle the income therefrom and the reversion as therein provided. The property embraced in the deed of June 9th was unproductive, and no doubt the taxes on it amounted to more than any income expected from it, and it would be a clear evasion of the duty imposed by the 4th article to pretend that the deed satisfied in part or whole the obligations assumed by Wm. Russell. The same thing might be insisted in reference to any property Wm. Russell would convey ; and if every conveyance by him to Mrs. Allen were imputed to the 4th article, the others would be useless.
   Scott, Judge,

delivered tbe opinion o£ tbe court.

It is not easy to ascertain tbe precise point on wbicb this cause turned in tbe court below.

1. As to tbe representations alleged to have been made by Allen, we are of opinion that in this case it is a matter of no importance whether they were express or implied; for if tbe owner of land sends a broker into market to dispose of it without any directions as to the title to be conveyed, he thereby gives an assurance to the world, by implication at least, that he has a valid title to that land both in law and equity.

2. The doctrine of marketable titles is purely equitable. Courts of law being the proper and peculiar tribunals for the decision of all legal questions, doubtful titles are not recognized by them. In the case of Romily v. James, (6 Taunt. 274,) the law on this subject is thus stated: “It is said the plaintiff will have made out his claim to recover back his deposit if a cloud is cast upon the title. That is not so in a court of law; he must stand by the judgment of the court as they find the title to be, whether good or bad ; and if it be good in the judgment of a court of law, he can not recover back his deposit. If he had gone into a court of equity, it might have been otherwise. I know a court of equity often says, this is a title which, though we think it available, is not one which we will compel an involuntary purchaser to take ; but that dis - tinction is not known in a court of law.” There is some contrariety of opinion on this subject, but the law seems to be settled as above stated. (Bogman v. Gutch, 7 Bingh. 379; Atkinson on Titles, p. 8, 9.) This being a suit at law, and the validity of the title arising, the question must be determined whether it is good or bad. We can not object to the title of the respondent that it is doubtful or unmarketable.

The finding of the court in relation to the validity of the deed tendered to Meier is not satisfactory ; it does not clearly appear whether the court was of the opinion that the deed was valid to convey a good title. We know it may be said that, whether it was effectual to convey title, is a question of law arising from the face of the facts found. This may be so. But we are not prepared to say that, from the finding, the deed tendered Meier was not effectual to pass the title. If the conveyance made in 1843 by Wm. Russell to Thos. Allen was in satisfaction of the 4th article of the marriage, it may be doubted whether the deed tendered was effectual. This fact is not found either way. Parol evidence may be admissible in determining it. An assertion made by the counsel of Allen, not appearing on the record, might have considerable influence in settling the question. The fact asserted was that the land con- . veyed by the deed of 1843, to Mrs. Allen, so far from yielding any rents or profits, was a burden and a source of expense, being unimproved. Without pretending to express any opinion as to the validity of the deed tendered to Meier, we will remand the cause, so that all the facts necessary to determine the validity of that deed may be investigated.

Judge Ryland concurring,

the judgment will be'reversed, and the cause remanded.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Krevet, Respondent, v. Meyer et al., Appellants.
    Í1. A tenant may maintain an action of forcible entry and detainer against his landlord, although at the time of the said entry the tenant may have been holding over after the determination of his term.

      Appeal from St. Louis Land Court.

    This was an action of forcible entry and detainer. The evidence tended to show that the defendants entered certain rooms upon the third floor of a house in the city of St. Louis, which rooms were at the time in the possession of plaintiff, and removed a door belonging to said rooms, and the sash of the windows of said apartments, and thus forced plaintiff out of possession. Defendants offered to prove that the premises in dispute had been let to plaintiff for only one month (which term expired before the alleged forcible entry) by Bernard Meyer, one of the defendants, as agent of Joseph Meyer, the other defendant. The court excluded his testimony. The court, among other instructions asked by defendants, excluded the following : “ 1. The jury are instructed that if they believe from the evidence that before and at the time of the institution of this suit, plaintiff’s right of possession to the premises sued for had ceased, they might find for defendants ; and the jury are further instructed that a tenant’s right of possession ceases with . the expiration of the term of his lease, unless there be a renewal or a consent of the landlord to the tenant’s holding over. 2. The jury are instructed that, to find for the plaintiff, they must believe from the evidence that at the time of the institution of this suit plaintiff was entitled to the lawful possession of the premises sued for, and that defendants unlawfully and forcibly entered thereon. 3. The jury are instructed that if a tenant is disturbed in his possession by a landlord, he has an action of trespass, and a verdict in this suit against plaintiff is no bar to his recovery in action of trespass against defendants for such disturbance of his possession. 4. If the jury believe from the evidence that plaintiff was tenant of defendants; that by the act of defendants the premises occupied were rendered uninhabitable, it was at defendants’ option to abandon the possession ; and if he so elected, and his abandonment of the possession was because the premises were uninhabitable, and not because of violence done, or fear of violence on the part of the defendants, the jury must find for the defendants.”
    The jury rendered a verdict for plaintiff.

      %S. J. P. Garesché, for appellant.
    I. The instructions asked by defendants should have been given ; the first three as raising the question whether plaintiff was, at the time of the institution of this suit, lawfully entitled to the possession of the premises sued for. The fourth instruction should have been given, because it was a question whether it was a case of trespass or of forcible entry and detainer. (See 6 Mo. 846 ; 7 Mo. 167,171, 289 ; 8 Mo. 281; 11 Mo. 854, 605 ; 12 Mo. 306; 18 B. Mon. 184; 9 Mo. 301.)
    II. Though title can not be considered, the legality or illegality of possession may, and defendants therefore had the right to show that plaintiff’s right of possession had ceased.

      S. H. Gardner, for respondent.
   Scott, Judge,

delivered the opinion of the court.

By the common law, a person having a right of entry to lands in the possession of another might enter into the possession, and although he was subject to an indictment for any breach of the peace committed in making his entry, yet there was no remedy provided by which he could be compelled to make restitution of the possession thus forcibly taken. In order to correct the evils attending this state of the law, and to take away all inducement to persons to redress themselves at the expense of the peace of the community, several statutes were made which prohibited the forcible entry on the possession of another, and directed that, in the event force was found, restoration of the possession should be made to the party who was forcibly ejected. In the construction of these statutes, all attempts to prevent restoration, by showing that the person guilty of the force had a right of entry, were steadily resisted. Upon the force being found restitution followed as a matter of course, without any regard to the right of the party by whom it had been committed. This was done that men might learn to appeal to the law for injuries done them, and not undertake the redress of their own wrongs. (1 Hawk. P. C. 495, 508.)

In the case of the People v. Leonard, (11 Johns. 508,) which was an indictment under the statute against forcible entries, in answer to the point that the title was in question, the court said, the complainant has nothing to do with that. He must give up the possession irregularly obtained, put the defendant in statu quo, and then proceed legally to the question of title.. In the case of Chiles v. Stephens, (3 Marshall, 341,) it was held that in warrants for forcible entry and de-tainer, the right of entry, is not in issue ; nothing but the actual possession can be tried ; and it is immaterial how that possession was gained. If the tenant holds over, the landlord can not enter against his consent, but must resort to his warrant. A possession gained by disseizin will not prevent the disseizor from maintaining his warrant against another having a right of entry, but who enters on his possession without his assent. These cases are not cited as authorities, for we know that they are founded on statutes different from that in.force in this state. The object in producing them is to show that the principle on which this proceeding is founded is not novel; that it prevailed in England and in sister' states. That principle is, that persons shall not take the law into their own hands, but shall assert their rights by action in a peaceable manner and not by force.

It is clear that our statute concerning forcible entries and unlawful detainers was designed to enforce this principle, and to compel its observance by restitution as the only proper remedy, without regard to the rights of the party guilty of the force. The use of the words, “ lawfully possessed,” in the sixteenth section of the act, is the only thing that throws any doubt upon the subject. But it is obvious, from the tenor of the act, that the word lawfully means nothing more than peaceably; otherwise the remedy provided would be nothing more than an ejectment. Besides, the 26th section of the same act directs that the merits of the title shall in nowise be inquired into on any complaint which shall be exhibited by virtue of this act. The second section clearly prohibits a forcible entry without regard to the right of the party making iti If the plaintiff must show right to the possession, then every tenant holding over is at the mercy of his landlord, and, with whatever violence he may be expelled, the act would afford him no redress.

If the case is as stated by the defendants, that the plaintiff had no right to the possession, it is a great mistake to suppose that he could maintain an action of trespass against them for their entry, they having a right of entry. A person having a right may make a peaceable entry. If he enter with force he may be punished for the force; but the common law afforded no means by which his possession could be disturbed. At common law there was no civil remedy against a person who entered forcibly, having right. (Taunton v. Castor, 7 Term, 43.)

These views render unnecessary any remarks on the instructions refused or given. There was no error in them.

Judge Ryland concurring,

the judgment is affirmed.


text:
    Stewart et al., Plaintiffs in Error, v. Dent, Defendant in Error.
    1. A judgment for damages in an action in the nature of an action of ejectment, although for a merely nominal sum, is a bar to a recovery, in a subsequent suit, of rents received prior to such judgment.

      Error to St. Louis ■Court of Common Pleas.

    John Stewart and others instituted a suit, in the nature of an ejectment, against Pope, to recover possession of certain premises in the city of St. Louis, and also damages for the detention thereof. Dent, under whom Pope held as tenant, was admitted as a co-defendant. A recovery was had by plaintiffs, and the jury assessed the damages sustained by the detention ef the premises, at the sum of one dollar, and the monthly v-alue at $66 66-f. The present suit is instituted to recover the rents received by Dent from Pope prior to the date of the judgment in said ejectment suit.

      Knox & Kellogg, for plaintiffs in error.

      T. T. Qantl, for defendant in error.
   Scott, Judge,

delivered the opinion of the court-

The record "of the original suit between the parties to this action shows that the plaintiffs claimed damages of the defendant for holding possession of the premises in controversy. Damages were assessed in that action, though for a nominal sum, and the monthly value was found to be $66 66f.

The fourteenth section of the act concerning ejectment provides that, “ if the plaintiff prevail in the action, he shall recover damages for all waste and injury, and by way of damages, the rents and profits, down to the time of assessing the same, or to the time of the expiration of the plaintiff’s title, under the following limitations,” &c. The limitations which follow do not affect the question under consideration. In the former action, the plaintiffs prevailed, and they recovered one dollar damages. The present suit is brought to recover the rents and profits which were received pending the first suit, and which should have been assessed to the plaintiffs in that action.

We are not aware of any principle on which this action can be sustained. The very matter passed upon in the first action is again presented for litigation in this. The jury were required to ascertain the damages the plaintiffs had sustained; they ascertained the amount, and stated it in their verdict, and now the plaintiffs seek a reinvestigation of the correctness of that verdict by another suit. There is no warrant in law for this. The matter has passed in rem judicatam. In the case of Fetter v. Beale, (1 Salk.,) an action for an assault and battery was brought for beating' the plaintiff’s head upon the ground, and there was a recovery. Afterwards a piece of the skull came out in consequence of the battery, and another suit was instituted; but it could not be maintained, as it was held, on the ground that the measure of damages for the injury had been considered on the first trial. That was a stronger case than this. In principle, this case resembles that of Garth v. Everett, (16 Mo. 492,) where it was held that a plaintiff failing to recover full damages for the conversion of property in one suit, could not maintain a second action in order to recover the damages which might have been assessed to him in the first action.

As to what was said about a mistake in the verdict or judgment in the first action, it may be answered that it would violate all principle to correct the errors in one action by means of a second suit. If there was error or mistake in the proceedings in the first action, steps should have been taken in that action to have corrected it; it was not competent to do this by a second suit.

The other judges concurring, the judgment will be affirmed.


author: LEONARD, Judge,

text:
    Blumenthal, Appellant, v. Roll, et al., Respondents.
    1. The opinion of a surveyor as to the proper location of a concession or grant, is inadmissible in evidence to determine such location.

      Appeal from St. Louis Land Court.

    William H. Cozens, as appears from the bill of exceptions, testified as follows : “ That he is a surveyor of lands, and has been such sinee the year 18E6. He was born here ; knows the Grand Prairie common field lots, and has become acquainted with them in the course of employment of a surveyor; that he located many lots in the southern part of said Grand Prairie common fields under engagements with the United States surveyor general in the capacity of a deputy of that officer. During the progress of this work, he was required to make investigations of claims south of the St. Charles road, in the course of which he examined witnesses, among whom were the oldest residents of this place, from sixty-five to eighty years of age, who showed him the location of the earliest occupants of land in these common field lots. Amongst these witnesses were Antoine Smith and Jacques Labbie. He knows the Chancillier tract; and from his knowledge of the location of lots in the Grand Prairie in early times, before the change of government, acquired in manner above stated, he believes the true position of it as located by Brown’s survey given in evidence.. North of Chancilli-er lies the lot formerly surveyed by Duralde for Keircereau, which I believe to be correctly located, joining Chancillier on the north. . South, of Chancillier’s a lot is surveyed by the United States for Calve, as appears by the connected plat of the United States survey of the Grand Prairie common field lots. [The plat here referred to is the sanie above mentioned, and the witness spote of lots as located thereon, looking on the plat while testifying.] In the course of my regular employment as above stated, I had to examine the correctness of the survey of the Calve claim, and, in my opinion, it does not belong next south of Chancillier. The claim of Hervieux, of two by forty arpens, belongs there. The Hervieux tract is not located by the United States survey at any place. Next south of Hervieux the lot of Auguste Condé should be located. The claim of Calve, called for by his concession^ should be located in the Cul de Sac, south of the Grand Prairie. The survey of Calve’s claim by the United States was made in 1841 or 1842. The land surveyed for Calve, prior to its being surveyed, was open, unoccupied land, and never was located as a common field lot for any one else,, by survey by the United States, before it was surveyed for the Calve claim.. I locate Hervieux next south of Chancillier, because he has such location by the calls in the archives. Condé is located south of where I think Hervieux belongs, and Condé’s concession calls for Hervieux. Acting as a public officer, employed by the United States, I spent three years in locating and in making the investigations for locating the lots in the Grand Prairie common fields. The value of the land in dispute is worth from ten to fifteen dollars per month. I have made search in the proper offices for a concession to Calve for the land surveyed to satisfy his claim, and could find none. I know the Her-vieux concession ; it lies, in my opinion, south of Chancillier and corners on the land surveyed to Calve.”
    Cross-examined. “Have known the Chancillier tract since 1837 or ’8. As to the Kiercereau lot, as surveyed by Duralde and Marshall, on the connected plat of the Grand Prairie common field lots, I have examined the records — think it correctly located. Kiercereau was the most southern lot surveyed by Duralde, and calls for no one on the south. I surveyed the lot confirmed for Lemonde. The Dunegan survey was made before I commenced — in 1842 or ’8. 1 began my survey in 1845.” The witness takes the concession to Hervieux in his hand, and having read it, says: “I might locate it either north or south of Chan-cillier, looking at this concession alone. Kiercereau was located by Duralde and also by Joseph C. Brown. I found Kier-cereau fixed by the United States where it now is, and also Dunegan, and was told not to touch the survey then made, and acted upon them as though correctly located. But for the survey already made of the Kiercereau land when-1 commenced my work there, it and Chancillier might as well be ten arpens apart, so far as I know. I was told by the surveyor general not to disturb the surveys in the Grand Prairie already made. I do not now recollect why I located Lemonde, as it was surveyed by me, as it stands now in this plat.”

      F. A. Dick, for appellant.

      W. L. Williams and Minor, for respondents.
   LEONARD, Judge,

delivered the opinion of the court.

The question upon the trial of this cause was as to the proper location of one-half of the St. Louis common field lot conveyed by Chancillier to Gamache in January, 1773, under .which the plaintiff claimed the premises in question. The only description of the land given in the deed is in the language of the translation furnished us by the parties : One-half of an arpent of land in front by forty arpens in depth,” being a portion of a larger tract which he (Chancillier) owns, from having had the same conceded to him by the king, situate in the Grand Prairie, lying to the west of said post (St. Louis),, bounded on one side by the land of Jean Baptiste Hervieux, gun-smith, and on the other side by the part remaining to the’ said Ohancillier.” In order, therefore, to ascertain the half conveyed to Gamache, it was necessary to determine the position of the Hervieux lot, whether north or south of the lot conceded to Ohancillier; and the only evidence given for this purpose resolved itself, at last, into the opinion of Mr. Cozens, a practical surveyor, who gave it as his opinion that the Kirce-réau lot lay next north of Ohancillier, and the Hervieux lot next south of Ohancillier, in the position now occupied, according to the United States surveys, by the lot conceded to Oalve, which the witness thought ought to have been surveyed in the Cul de Sac ; and the court having declared that, on the proof given, the plaintiff was not entitled to recover, the question for our decision is, whether the surveyor’s opinion, as to the locality of the Hervieux lot, was sufficient to require the court to submit the case to the jury.

Mr. Cozens testified to the effect that he was a land surveyor, and knew the Grand Prairie common fields; that he became acquainted with them in the course of his employment under the United States surveyor general as a deputy of that officer, during which he had located many lots in the southern part of these fields; that during the progress of the work, in which he was engaged about three years, he was required to investigate the claims lying south of the St. Charles road, in the course of which he examined old witnesses, who showed him the location of the earliest occupants of the land, and that he had in this manner become acquainted with the position of the lots in the Grand Prairie in early times, before the change of government.

In ordinary cases, the opinions of a witness can not be submitted to a jury, for the reason that it is the province of the jury and not of the witness to draw the proper inferences, for which purpose it is supposed they have sufficient knowledge. When, however, the solution of the question requires a degree of skill which is usually confined to persons exercising a particular act or profession, and is not possessed by men generally, persons skilled in such matters are allowed to give their opinions. This class of cases, however, ought not to be unnecessarily extended ; and opinions should not be'received except where they are the only means of enabling a jury to come to a correct conclusion. In Davis v. Mason, (4 Pick. 156,) the opinion of a practical surveyor, whether piles of stones and marks on trees were monuments of boundaries, were received ; and in Heirs of Farrar v. Warfield and wife, (8 Mart. N. S. 695,) a surveyor was not allowed to give his opinion as to the proper location of a grant, but was required to state facts, leaving the court and jury to make the proper inference from them. The two cases are consistent, and both opinions, we think, are correct. (Evans v. Greene, 21 Mo. 170.)

Although at the trial the evidence was received without objection, yet we are all clearly of opinion that it was insufficient to authorize the court to submit .the case to the jury, and the judgment is therefore affirmed.


author: Ryland, Judge,

text:
    Curle’s Heirs and Administrator, Respondents, v. Eddy et al., Appellants.
    1. An oral' agreement to the effect that real estate, the title to which had been previously taken as a security, should stand as a security for further advances, is within the statute of frauds and consequently void.

      Appeal from St. Louis Land Court.

    The facts sufficiently appear in the opinion of the court.

      Todd and Krum & Harding, for appellants.
    I. Oral evidence is admissible to show that a title to real • estate, vested by terms absolute, is nevertheless held as a mere security or in mortgage. (1 Hilliard on Mort. ch. 3, p. 29 and following; Robertson .v. Brant, 16 Mo. 142; 1 Wend., 486 and 437 and cases there cited; Adams’ Eq. Ill, 112, side pages, and notes.)
    H. When it appears that a title to property is taken in the first instance as a security for a particular debt, if other indebtedness is afterwards created by credits given by the same creditor to the same debtor, oral testimony is not only admissible to show an agreement between the parties that the title to the property may be also held for a security for this indebtedness, but equity will presume such an agreement without express evidence thereof. (15 Mass. 406, 415 ; 2 J. C. S08, 309; 5 J. C. 826, 327 ; 6 J. C. 429 ; 7 Cranch, 34 ; 1 Hil-liard on Mortgages, 211, 212, 213 ; also see 2 Sandf. Ch. R. 912-13.)
    HI. The fact that the title is vested in the first instance in more than one person, as a security for a debt in behalf of them all, should not in equity deprive either of them of the benefit of the title as a security for further credits given by one of them alone, or jointly with andther, to the debtor. For the best and true reason for the presumption asserted in the last proposition is, that the taking of security in the first instance for the first credit was owing to an unwillingness to credit the debtor without collateral security, and therefore it is not to be supposed that future credits would be given, (the security being still retained,) without a rightful reliance upon the same security for the subsequent credits. Hence, for the like reason, it should not be supposed that one of the parties holding the title would alone, or with another person, give further credits, unless it was understood with the debtor that these subsequent credits should be protected by the security still retained. But when such future credits should be between only one of the parties, holding the title for the first debt, belonging to them all, or such one with others and the debtor, such future credits would only have a right to the security subordinate to the first.
    IV. But if the case last supposed could not have the benefit of the presumption, yet it would be competent for these new creditors and the debtor to agree with the holders of the title, that the title might continue to be held by them as a security for these subsequent credits. Of this there can be no question; for as the debtor (if he had the title in himself) could convey it to secure sucb subsequent credits, be could agree, effectually, that tbe title, already vested in one of these new creditors and another person, he not objecting, but agreeing to it, might be held and retained as a security for these new credits, and such an agreement could be proved by parol, as already shown ; and this is exactly the case made by the answer, and which the court below struck out. The court will observe in this case that the title was vested in these defendants by an absolute deed at the time Curie made the verbal agreement that they should hold it as security for credits given to Curie by Beach & Eddy. (Adams’ Eq. 123, 124, 125, side pages.)
    Y. A party who seeks equity must do equity. This ease presents itself as if it were between Curie himself and the defendants. It expressly alleges that the credits, to secure the payment of which the property is sought to be retained, were given, not only upon a reliance upon this property as a security therefor, but under the faith and confidence of an express agreement with Curie that it should be held as a security therefor. How, then, can equity aid in taking it away and giving it to Curie without a satisfaction of these credits ? Such an act would not be equity, but iniquity. (15 Mass., before cited.)

      Glover & Richardson and J. E. Munford, for respondents.
   Ryland, Judge,

delivered the opinion of the court.

This is a suit by the heirs and administrator of Richmond J. Curie, deceased, against Joseph A. Eddy and another, to compel the defendants to convey to them title to a certain tract of land described in the petition, pursuant to their written agreement to that effect, upon the payment of certain moneys specified in the agreement.

The defendants answer and state that they and Richmond J. Curie made a joint purchase of the land, and that Curie, not being in funds, it was agreed that the defendants should advance the purchase money ; that the title for Curie’s interest should be conveyed to them as a security for the money advanced, and it was so conveyed under this oral contract; and that, at the same time, it was further orally agreed that the defendants should advance for Curie the money to pay taxes, costs, &c., and hold the title in security for these advances ; which they aver they made, and which amount to $667. The answer also states that after the title was conveyed to the defendants, it was agreed orally between said Curie and John Scott, and Beach & Eddy and these defendants, that Beach & Eddy should advance to Curie and Scott goods, wares and merchandise for the purpose of carrying on their coal adventure ; and that Curie proposed to Beach & Eddy and these defendants, that these defendants should hold the title of said Curie’s part of the land, already conveyed to them, until the money or goods advanced to Curie & Scott by Beach & Eddy should be repaid to them ; that Beach & Eddy advanced to Curie & Scott goods, wares and merchandise to a large amount; that Beach & Eddy sued the administrators of Curie and recovered judgment for a large amount — upwards of $8400 — and that this judgment is not satisfied, but the money is still due to the said Beach & Eddy — ■ said Eddy being one of the defendants to this suit. The answer avers that said Curie always, up to the time of his death, verbally recognized and acknowledged the right of these defendants to hold the title to his share of said land until said advances were paid. The answer avers that Richmond J. Curie did not in his lifetime fully pay and reimburse to these defendants the sum of $2500, advanced by them for him, in order to pay the purchase money for the land. They say that there is justly due to these defendants the amount of money specified in the judgment in favor of Beach & Eddy, and also the amount for advances and costs and services rendered, amounting to $1100 or $1200.

The court struck out that part of the answer in relation to the advances made by Beach & Eddy to Curie & Scott.

There was a hearing and finding of facts — no verbal agreement found — no finding as to tbe manner of acquiring tbe title by tbe defendants, except wbat appears from tbe writing. Tbe court decreed title to be made upon tbe payment of $967, the amount allowed to defendants for advances and services, and from this part of tbe decree the plaintiffs bring the case here by writ of error ; and tbe defendants bring it here by appeal, because tbe court refused to allow tbe matters set up in tbe answer in regard to tbe agreement verbally made by Curie to tbe defendants to bold tbe land subject to tbe advances made by Beach & Eddy to Curie & Scott. Tbe defendants contend that these advances were by agreement to be charges on the. land, and that they are not bound in equity to convey unless these sums be first paid back. Tbe agreement is as follows: “ Whereas we have this day received from Richard P. Barrett a bond for a deed for tbe undivided half of forty arpens of land purchased of Dominike Burtbe and others, dated 10th of July, 1847 ; and whereas Richmond J. Curie is tbe owner of one-third of said land conveyed by said Barrett, we bind ourselves, after tbe payment by said Curie, of one note of $500, and one note of $2000, given to Joseph A. & J. P. Eddy, and any other liabilities of said Curie to tcs, to convey to him bis interest of one-third of tbe above land. St. Louis, Mo., July 12, 1847. [Signed] J. A. & J. P. Eddy.”

There are no verbal agreements found to exist between tbe parties. We suppose tbe act of the court below, cutting out, on motion, tbe defendant’s claim to bold tbe land until tbe money, goods, wares and merchandise advanced to Curie & Scott should be refunded, rendered no finding necessary as to any agreement on that matter. Tbe $2500 were found to have been paid by Curie in bis lifetime to tbe defendants. Tbe main questions then in this case involve tbe correctness of tbe rulings of tbe lower court in regard to allowing the claim for taxes, fencing tbe land and other costs accruing on account of tbe land, and tbe allowance for services of tbe defendants in attending to this matter. These are tbe subjects on tbe rulings in regard to which tbe plaintiffs complain.

Tbe other party complain of tbe rulings cutting out their rights to hold the title subject to advances made by Beach & Eddy to Curie & Scott.

So far as regards the plaintiffs’ objections, we think that the agreement to convey gives the right to demand that the taxes, costs in defending title, fees in relation to the land, enclosures, &c., should be paid by Curie in his proper proportion to the defendants before he can demand the conveyance to be made to him. But so far as regards the services in attending to this business we entertain great doubts of the propriety of such claim; but as the record shows that the plaintiffs were willing to admit $300 of these services, we will not réverse for allowing to them that amount. The words and any other liabilities of said Curie to us” may be fairly understood to embrace all proper liabilities incurred by them in regard to the subject matter of the contract. They did not know what these might be ; therefore, under this expression, the payment of money by the defendants, as specified in the account presented by them, might properly form a- debt from Curie to them. It becomes a liability resting on Curie which must be discharged before he can require the title to be conveyed to him. We see no reason, therefore, to reverse the judgment below for any thing alleged by the plaintiffs in tlieir writ of error.

The defendants contend that, by the parol agreement by Curie and themselves, the advances made by Beach & Eddy to Curie & Scott became liens on the land of Curie, and that the court below should have required by its decree that this sum should be paid out of the land before’the defendants can be equitably or legally required to convey. They say it is of the nature of a mortgage, at least an equitable mortgage, and that by the title remaining in the hands of defendants, taken in their name at first, they being the legal owners of the land, any advances made by Beach & Eddy to Curie & Scott are in law presumed to be made on this land, looking with an eye to this land as a means of payment in future.

By our statute, no action shall be brought upon any contract for the sale of lands, tenements, hereditaments, or any other interest in or concerning them, unless tbe agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party charged therewith, or some other person by him lawfully thereto authorized. Now, in the opinion of this court, the verbal agreement between Curie and these defendants to hold the land subject to the advances to be made by Beach & Eddy to Curie & Scott is within the provisions of this statute, and therefore not binding. Consequently it was proper in the court below to strike out so much of the defence as rested on th^agftieE There is much learning on the subject of mo^ge^e^tS'seA)^ future liabilities. But it seems that the mortgage for this purpose must express the object. .The assistantméAUía&llitópL1, in the case of Walker v. Snediker et al., (1 (Hoffman, 146,) said, “ It had been settled in equity by repeate\ducrsxo: a mortgage, to secure future as well as present retjfeitgib is good; but the better opinion, if not decided law, is, that the mortgage must express the object. It is certain that it can not be rendered available for future liability by a subsequent parol agreement.” In Jarvis v. Rogers, (15 Mass. 392,) Parker, C. J., said : I admit that by the principles of the civil law, as they have been applied to mortgages, if the debtor pledges property for the security of a debt, and afterwards another debt is contracted to the same party, the creditor may retain until both debts are paid, provided no other security is given and no stipulation is made with respect to the second debt, tending to negative the presumption of an implied contract that the pledge should be so retained. But this doctrine, I believe, is founded upon the presumption of such contract, and where there is no original contract to pledge, there can be no presumption with respect to a subsequent debt.” Ch. Justice Sharkey, in Williams v. Strattan, (10 Smed. & Mar. 426,) said : “ A deposit of all the title deeds, as a security for a debt created at the time. the deposit is made, is generally recognized as constituting an equitable mortgage. Such equitable liens have met with very decided opposition in England, though they have been generally sustained; but it is admitted on all bands that they should not be extended beyond their present limit. Such a mortgage is in direct opposition to the statute of frauds, in regard to which we have said that we will create no exceptions not found in the statute. Lord Eldon said, in departing from the rule of the statute, there is no rule to go by, and it was essential that those who wished to render such securities valid should learn the utility of requiring two or three lines in writing.” In Shirtz v. Deiffenbach, (8 Barr, 234,) it was held that there could be no such thing as a parol mortgage of lands in Pennsylvania. (Bowers v. Oyster, 3 Penn. 239.) The court of appeals of Kentucky, in Vanmeter v. McFadden, (8 B. Mon. 437,) said: “ We are strongly inclined to the opinion that the mere deposit of title deeds should not be regarded in this state as constituting any lien upon real estate. If permitted to have this effect, an interest in landed property is created by the contract of the parties not reduced to writing in direct violation of the statute of frauds. Under our registry laws, the mere possession of the title deeds is of no real importance to the owner of the estate. He can procure office copies and use them without accounting for the absence of the original deeds, and that necessity which gave rise to this doctrine of implied or equitable lien having no existence here, the doctrine itself would be difficult to be maintained either upon the ground of principle or of public policy.’’ Lord Elden said, in ex parte Hooper, (19 Vesey, 210,) that “ there never was a case where a man having taken a mortgage by legal conveyance, was afterwards permitted to hold that estate, as further charged, not by legal contract, but by inference from the possession of the deed.” The same chancellor said, in ex parte Whitbread, (19 Vesey, 210,) u Upon'this subject 1 must always protest that the doctrine now prevailing ought never to have been established. The law previously was, that, if there was a clear mortgage and a subsequent advancement, the latter could not be added without writing. When that was once determined, how could it be said that these deposits should have this effect ?”

Without deciding whether there can be an equitable mortgage under our system of law or not, the court is fully satisfied that the'’parol contract — set up in this case by the defendants in order to make the future advances to Curie & .Scott operate as an equitable lien or mortgage on the land of Curie, the title of which was then in the defendants — is void, being contrary to the statute of frauds and perjuries.

Upon this contract, then, which was contrary to the statute, the defendants can not insist on tacking their debt against Curie & Scott to the amount of the purchase money originally advanced by them for Curie, and which has been paid back, and require this debt to be paid before they convey according to their written agreement. This view settles both cases, affirming the judgment below in all things ; this court allowing the same time as the court below did. The plaintiffs must pay the costs of the ease brought here on error, and the defendants the costs of the ease brought here by them on appeal. The record in this case will be remitted to the court below, with instructions to carry into execution the deeree which was made by that court, allowing to the parties the same time to perform their respective parts as decreed, counting from this day.


text:
    In the matter of the Assignment of Thomas McGrade.
    1. A final judgment must tie rendered in a cause beforean appeal can be taken to the Supreme Court.

      T. T. Gantt, for respondents.

      Hill, Grover & Hill, for appellant.
   Scott, Judge,

delivered the opinion of the court.

This case is brought here by the appellee on a motion to affirm the judgment, on the ground that the appellant has not brought his appeal here within the time required by law. It appears from the record that there has been no final judgment in the cause. The construction of the statute relative to appeals has been uniform, that there must be a final judgment in a cause before an appeal can be taken. The motion of the appellees will therefore be overruled, for the reason that the cause is still pending in the court below, and until it is finally disposed of no appeal will lie to this court. The other judges concur.


author: Soott, Judge,

text:
    Berthold et al., Plaintiffs in Error, v. McDonald et al., Defendants in Error.
    1. Where there are two confirmations under the act of Congress of March 3, 1807, upon successive days, of the same tract of land to different claimants, the superiority of either title must be determined by the relative merits of the two titles as they stood before the confirmations.

      2. A confirmation of a Spanish claim under the act of Congress of March 3, 1807, is not rendered void by reason of the fact that the person in whose name said claim was presented for confirmation, and to whom it was con firmed, had died previously to its presentation for confirmation 5 the confirmation will enure to the benefit of his legal representatives.

      Error to St. Louis Land Court.

    This was an action in the nature of an action of ejectment. Plaintiffs assert title to a tract of two by forty arpens under a confirmation by the old board of commissioners to Charles Gra-tiot. Defendants claim under a confirmation by the same board ■to one Jeannette. The following facts appeared upon the trial: ‘Charles Gratiot, claiming a tract of two by forty arpens, situate in the Prairie des Noyers, as assignee of Jeannette Floré, ^presented his claim for confirmation under the act of Congress ■of March 8, 1807. He produced before the board a report of ■.a survey of said two by forty arpens made in 1788 for one Jeannette ; also a deed of transfer of said lots, dated June 11, 1805, purporting to have been executed by Jeannette Floré. The board on the-19th of November, 1811, confirmed said lots to Gratiot and ordered them to be surveyed conformably to bis possession. A claim to said tract of two by forty arpens was filed, in the name of Jeannette, with the recorder of land titles prior to the filing of the claim of Gratiot. On the 20th of November, 1811, the board confirmed the said tract to Jeannette. These confirmations were made under the second section of the act of Congress of March 3, 1807. Evidence was introduced in behalf of defendants, tending to prove that the person named Jeannette, in whose name said tract was confirmed on the 20th of November, 1811, as above stated, was a free negress, who lived in the town of St. Louis, and died there, either before or just after the change of government in the year 1803, leaving one child, Susanne Jeannette ; that said Jeannette, and she alone, possessed and cultivated said tract under the Spanish government; that she was never known by any other name than simply Jeannette ; that there was not in and about St. Louis, in or before the year 1805, any woman named Jeannette Floré; that there was a woman named Marie Floré, who owned a tract in the Prairie des Noyers of one-half an ar-pent in front by forty arpens in depth, which lay to the south of and was distinct from the premises in dispute ; that neither any person named Jeannette Floré, nor the deceased Charles Gratiot, nor any person claiming under him, had ever cultivated or possessed the tract of which the premises in dispute are a part. Gratiot died April 20th, 1817. Previous to his death the deed which had been made to him in the name of Jeannette Floré, and which had been recorded in 1805, -was again recorded with a correction which had been made on the 30th of March, 1817; which correction is made under the hand and seal of Florence Floré ; and by it she acknowledged that by error in said deed she had been named Jeannette. Floré, and that she had executed the deed to Gratiot on the day of its date for the purposes therein contained. Defendants also introduced in evidence a deed of indenture, dated January 13, 1819. This deed was executed by Florence Floré, and by J. P. Ca-banne, administrator, and by Yictoire Gratiot, widow and ad-ministratrix oí Charles Gratiot. It recited that there -was an error in the deed of June 11, 1805, in respect to the “ quantity of land sold, the situation, limits, and description of said land, as well as in the name of the said Florence Floré.” The deed then proeeeds-to annul the deed of 1805, and conveys to the heirs and legal representatives of Charles Gratiot, deceased, the tract of one-half by forty arpens in the Prairie des Noyers, situate two and a half arpens south of the Jeannette lot. This tract of one-half by forty arpens was sold in the year 1820, under judicial order, by the administrators of the estate of said Charles Gratiot, and the proceeds appropriated and applied as part of the assets of his estate.
    The court, on the motion of defendants, instructed the jury as follows : “If the jury find from the evidence that the tract of land confirmed to Jeannette by the board of commissioners includes the land in controversy', and is the same land which was surveyed for Jeannette by the authority of the Spanish government ; that the said Jeannette and those acting for or under her were the only persons who inhabited, cultivated or possessed the said tract prior to the 20th of December, 1803 ; that the person who executed the deed in the name of Jeannette Floré and filed by Charles Gratiot with the recorder of land titles as one of the evidences of his claim, is not the person for whom the survey of said tract of land was so made, but another and a different person, and that she cultivated and possessed, prior to 20th December, 1803, another and different tract in the same common field, surveyed for her by authority of the Spanish government in the year 1788, embracing no part of the land in controversy, — the jury ought to find for the defendants.” This was the only instruction given.
    The following instructions asked by the plaintiffs were refus-' ed: “1. If the jury find that Jeannette was dead before the time of filing the claim in her name with the recorder, then the confirmation to her individually was void, and neither the confirmation nor claim can have any effect on the rights of the parties in this case. 2. The confirmation of the tract, of which tbe land in 'controversy is a part, to Charles Gratiot, is in law conclusive as to two facts ; first, that be was tbe true and proper assignee of Jeannette Floré by tbe deed under wbieb be claimed the land before tbe board of commissioners ; and, second, that he bad tbe oldest and best claim to tbe land as against every other claimant under the Spanish government. Any subsequent confirmation of tbe said tract to another person could not defeat that made by Gratiot. 8. Tbe tract confirmed to Charles Gratiot on the 19th of November, 1811, was the same tract described in tbe Spanish survey for Jeannette, filed and recorded with bis claim.”

      Brahe and Field, for plaintiffs in error.
    I. The first confirmation, in point of time, was to Gratiot, and the plaintiffs claiming under him bad tbe elder and better title. (Strother v. Lucas, 12 Pet. 410 ; Bissell v. Penrose, 8 Howard, 317 ; Landis v. Brant, 10 Howard, 348 ; Lebois v. Bramell, 4 Howard, 449; Chouteau v. Eckart, 2 Howard, 344.)
    II. There was no power in tbe court below to correct any error on tbe part of tbe commissioners in giving tbe confirmation to Gratiot. Such a power has always been disclaimed by the courts of tbe United States. Much less ought such a power to be exercised by a state court. (See cases above cited and Blane v. Lafayette, 11 Howard, 112 ; 3 Howard, 720 ; Burgess v. Gray, 16 Howard, 48.)
    IH. The confirmation to Jeannette (she being dead befpre any claim made, and in fact before tbe creation of tbe board of commissioners) was a nullity. In tbe ease of tbe death- of a claimant during tbe pendency of the claim before tbe board, tbe doctrine of relation will make tbe confirmation good. So it is understood to have been held, that a elaim presented by a living person on behalf of tbe estate of one deceased is su£5-cient. But in this case the claim seems to have been made in tbe name of a person who did not exist when it was made. It is submitted that tbe proceeding is merely void.
    IF. It is of no importance whether the ene confirmation or tbe other was first surveyed, nor that there appear two surveys of the same land. (McGill v. Somers, 15 Mo. 80.)
    Y. The circumstance that the lines on the ground were actually only run once, is no impeachment of a survey afterwards adopting the lines thus run. (Kissell v. Public Schools, 16 Mo. 353.)

      Gamble, Geyer and Gibson, for defendants in error.
    . I. The confirmation to Jeannette was valid, notwithstanding she was dead when the notice was filed. (Mercier et al. v. Letcher et al.)
    N. If the confirmation to Gratiot be regarded as the elder confirmation, it is not conclusive upon Jeannette’s representatives. (2 Stat. U. S. 440, secs. 2 and 4.)
    • III. Gratiot’s is not the elder confirmation. Jeannette’s is the older by relation. (Landes v. Brant, 10 How. 370, 373 ; Jackson v. McMichael, 3 Oon. 75 ; Crowley v. Wallace, 12 Mo.'145.)
    IV. Gratiot’s confirmation had no locality, and did not attach to any iand without a survey. (West v. Cochran, 17 Howard, 403.)
    V. The survey required by the confirmation was to be executed by the surveyor upon the ascertainment of the fact relating to the possession. (Kissell v. Public Schools.)
    YI. The possession was the controlling fact in locating the confirmation. (Page v. Scheibel, 11 Mo. 185.)
    VH. The instruction of defendants put the title under the confirmations and survey upon the true ground, of possession by Jeannette alone under the Spanish government.
    YIII. That the confirmation of Gratiot being without a survey, locating it according to possession of Floré is not the foundation of a recovery.
   Soott, Judge,

delivered the opinion of the court.

This is a case of the first impression in our courts. We have not found one in which there has been in our tribunals a controversy as to the relative merits of two confirmations for the same tract of land under the act of Congress of the 3d of March, 1807.

We are not prepared to acquiesce in the correctness of the assumption that the principle of the case of Landes v. Brant, (10 Howard, 348,) is applicable to that now under consideration. The rule there maintained is, that when the commissioners under the act of Congress of the 3d of March, 1807, for the adjustment of land titles in Missouri, decided in favor of a claim, and issued a certificate accordingly, this decision settled two points, viz : first, that the claimant was the proper person to receive the certificate ; and second, that the title so confirmed was better than any other Spanish title. It is maintained that the commissioners, acting under the act referred to, have confirmed the same tract of land to two different individuals. Hence it may be said of each claimant that he was the proper person to receive the certificate, and that his title, confirmed by the commissioners, is better than any other Spanish title. This being so, it would seem that priority in the act of confirmation, or the relative merits of the two titles, must give the rule for ascertaining which of them shall prevail. We do not consider that the ease of Landes v. Brant furnishes any ground by which •it can be maintained that the confirmation to Gratiot was a superior title to that conferred on Jeannette by her confirmation. A confirmation under the act of 1807 is conclusive against the United States, and is also conclusive against all those who did not file notices of their claims prior to July 1, 1803 ; for the fifth section of the act of 1807 bars and makes void the rights of all those neglecting so to do. The claim of Clamorgan, which was the subject of litigation in the suit of Landes v. Brant, was confirmed in 1811; and being conclusive against the United States, the confirmation was also conclusive against all Spanish claims, notice of which had not been given to the recorder prior to July 1, 1808. It not appearing that any other claim had been preferred to the tract confirmed to Cla-morgan, the court was well warranted in employing the language used on that occasion; for all other claims' to the tract being void and made of no avail in law or equity, and the confirmation being in the language of the act final against the United States, the court might well say that the claimant was the proper person to receive the certificate, and that the title so confirmed was better than any other Spanish title. How different are the circumstances of the case-now under consideration from those of that of Landes v. Brant. The elaim of Jeannette was -filed with the recorder before that of Gratiot, and was confirmed by the board only the. day after the confirmation made to him. Both confirmations were made under the second section of the act of 1807'; and as by that section no tract was to be confirmed that was claimed by another, we should regard the two confirmations as leaving the relative merits of the two titles as they stood before any confirmation. The law manifesting this care for the rights of third persons, there is no warrant for the inference that the mere circumstance of one claim being examined and confirmed a day before the other, should give it a conclusive preference. In providing that a tract claimed by any other person should not be confirmed, the law seems to have contemplated that the commissioners should not decide on the relative merits of two claims; but, having confirmed both of them, the question of superiority is left open for the courts. It must be borne in mind, that, by repeated decisions of the Supreme Court of the United States, the legal title or the fee did not pass from the government by a confirmation of the commissioners under the act of 1807; so this is not the case of an elder against a junior patent in an action of ejectment, but it is one presenting the relative merits of two inchoate or equitable titles. In the case of Carmichael v. Brisler, (8 Martin, 727,) there were two confirmations for the same tract of land. The court, speaking of the confirmation of the plaintiff, said, “ the confirmation of his claim by the land' commissioners had the effect of perfecting his title against' the general government, but leaves it to its original value when placed in opposition to the claim and title of an individual. To the same effect is the case of Sanchez and wife v. Gonzales (11 Martin, 212).

From the- evidence preserved in the bill of exceptions, to which no objection was taken, it is obvious that the claim of the plaintiffs, in point of equity, can not bear the least examination. In comparison with that of the defendant, it has not the least semblance of jus'tice. The conduct of the mother of the plaintiffs, as administratrix of Joseph Gratiot, a great many years ago, when the details of the transaction were comparatively fresh in the recollection of the parties, in relinquishing all claim to the tract in dispute as originating in mistake, and taking a deed for that really belonging to Floré, must be decisive as to the superiority of the equity of the defendants. Although the mother, by her deed, could not alien the estate of her children derived from their father, and although it may be inoperative for that purpose, yet the transaction is of great force in determining the relative merits of the claims of the two parties. The finding of the facts, embodied in the instruction given by the court, clearly establishes the superiority of the equity of the defendants. Indeed the plaintiffs seem to rely ■solely on the dry technical point, that their’confirmation was prior, in point of time, to that of the defendants ; a view of the case in which we do not acquiesce.

As to the objection taken that Jeannette was dead when the claim was filed in her name, and consequently that the confirmation to her was void, we may remark that the same point was made in the case of Mercier v. Letcher, (22 Mo. 66,) and it was determined that the circumstance of a claim being presented in the name of a dead man, no conveyance from him being shown, did not avoid the confirmation, but that it enured to the benefit of his heirs.

The judgment is affirmed, the other judges concurring.


author: Leonard, Judge,

text:
    Clarkson, Plaintiff in Error, v. Morrison’s Administrator, Defendant in Error.
    1. A., B. arid C. entered into a tripartite agreement under seal, whereby it was covenanted that a pork-house should be built upon a certain lot recited therein, to be held by C. under a lease from one D. — B. to erect the said pork-house — A. to advance to B. $1000 — C. to advance $3000 to B., and to surrender to B. all liens and securities held against him by C. except his (said C.’s) tilles, liens and security to and upon said lot and certain other specified lots — C. to make a lease of said pork-house, when completed, to A. for a term of two years at the annual rent of $2000 ; the amount of $1000 advanced by A. to be credited to him for the first half year’s rent — the rents to accrue upon said pork-house, and a hemp warehouse upon the same lot, to be paid to C., to be applied by him in the payment of the ground rent, insurance, taxes, &c.; the remainder to be applied in extinguishing the debt due, or to become due, from B. to C. — C. to keep the buildings leased and producing rent — C., whenever he should be paid all debts due from B., to assign to B. the lease from D. or any renewal thereof. Held, that a failure to complete the building would not give to A. a cause of action against C.; nor could A. treat the money advanced by him to B. as money advanced upon the credit of C.
    2. Amendments should be liberally allowed.
    , Error to St. Louis Court of Common Pleas.

    The following tripartite agreement, under seal, dated May 24, 1848, was executed by J. S. Morrison, Charles Collins and Charles S. Clarkson : “ Whereas, Joseph S. Morrison now holds a certain lot of ground on Broadway, in the city of St. Louis, under a lease from Mrs. Ashley, on which lot is now standing a hemp warehouse, lately built by Charles Collins under contract with said Morrison ; and whereas, it has been contracted and agreed by and among the parties hereto, that a pork-house shall be erected on said lot, to be tenanted and used, when completed, by Charles S. Clarkson ; now it is agreed and covenanted by and among the said Morrison, Collins and Clark-son, as follows : 1. Charles Collins is to erect upon said lot, and that part of it which lies between the hemp warehouse and Broadway, a pork-house, which is to be not less than fifty feet wide, and of tbe same length of tbe hemp warehouse; to be three stories high, and be built in a substantial and workmanlike manner. The plan of the pork-house and its internal arrangements are to be such as shall be acceptable to said Clark-son, and the whole house shall be completed on or before the •fifteenth day of October, 1848. 2. In order to enable the said Collins the better to carry on and complete the building of the pork-house, the following means and conveniences are te he furnished to him, via : 1st. Said Clarkson is to advance to said Collins, without delay, one thousand dollars in money, whieh sum of one thousand' dollars is to be made good to the said Clarkson, by a credit for the first half year’s rent of said pork-house after he becomes tenant thereof. 2d. Said Joseph S. Morrison is to surrender and give up, in a good and effectual manner, all the liens and securities which he holds against said Collins and Samuel M. Bowman, or either of them., except only his (said Morrison’s) titles, liens and securities to and upon the lot of ground on Broadway, held by lease from Mrs. Ashley, with the buildings erected or to be erected thereon, and the property at the corner of Green and Second streets, called the 1 Scott House propertyand except, also, his titles, liens and securities to and upon a certain tract of land situate in Lincoln county, and containming about two thousand arpens ; and as to the said Lincoln county lands, 'the said Morrison is to give to said Collins good written authority for power of attorney or otherwise, to sell or encumber the said land, or any part thereof, for the purpose-, first, of raising one thousand dollars, to he applied by said Collins towards the building of said pork-house ; and second, whatever additional sums may be raised by said Collins, out of said land, shall be paid to the said Morrison, and credited to said Collins on his indebtedness to said Morrison ; and the said Morrison is to advance to tbe said Collins the sum of three thousand dollars in money, in the sums and at the times following — that is, on the fifteenth day of June, 1848, one thousand dollars ; on the 15th day of August, 1848, five hundred dollars ¿ on the fifteenth day of September, 1848, five hundred dollars ; on the fifteenth day of October., 1848, five hundred dollars ; on the fifteenth day of July, 1848, five hundred dollars. 3. As soon as said pork-house shall be ■completed, the said Morrison shall make a lease thereof to the said Clarkson, and the said Clarkson shall accept the same, for the term of ten years, at the annual rent of two thousand dollars, payable semi-annually. 4. All the rents to accrue upon the lot of ground on Broadway, including both the hemp warehouse and the pork-house, shall be paid to the said Morrison, out of which he shall pay the ground rent and insurance upon the houses, and all taxes upon said property. The residue of •the rents so received shall be applied as follows : In order to cover interest at six per cent, on advances, and commissions at six per cent, for renting, insuring, and superintending the property, said Morrison shall retain twelve per eent. upon the entire amount of his advances to said Collins, made at any time heretofore, or that may be made hereafter, in connection with the buildings and improvements upon said leasehold property on Broadway, and the remainder shall go to the extinguishment of the principal of the debts due or to become due from said Collins to said Morrison, and shall be credited accordingly. 5. The said Morrison shall use all reasonable care and diligence to keep both the hemp warehouse and the pork-house leased and producing rent to the best advantage, and to collect such rents as shall become due; but he shall not be answerable for any rents that can not be collected by the use of such care and diligence. 6. Whenever the said Charles Collins or Ms legal representatives shall fully pay off and satisfy all debts due from him to said Morrison, the said Morrison or his representatives shall assign to the said Oollins or his representatives the aforesaid lease from Mrs. Ashley, or any renewal thereof whieh may then be in existence. In testimony whereof/’ &e.
    This suit was instituted by Clarkson against the administrator ©f Morrison to recover damages for a failure on the part of said Morrison to erect the pork-house, which it was alleged he had engaged by the above contract to build. The .second amended petition contained four several causes of action or counts. The first count is founded upon the agreement above set forth, and the breach alleged is a failure on the part of Morrison to build the said pork-house according to the stipulations of the above agreement. The second count alleges an extension of time to said Morrison from the 15th of October, 1848, to the 1st. of December, 1848, for the completion of the building, and a failure on said Morrison’s part to complete the same. The third count is founded upon an alleged oral promise of Morrison, made on the 16th of October, 1848, to complete the erection of said pork-house. The fourth cause of action is for money laid out and expended by plaintiff, Clarkson, upon said building while in process of erection. Demurrers were sustained to the first and second counts of the petition. The third and fourth counts of the petition were stricken out on motion of defendant, because the subject matter of said counts was new and different from the cause or causes of action set. forth in the original petition. Said original petition contained the following passages : “ Said Morrison, both before and after the making of said contract [the one above set forth}, promised and agreed with said Clarkson that he, said Morrison, would build and complete said pork-house according to the understanding of the parties,” &c. “ Plaintiff further states that in the spring of the year 1849, before the burning of said pork-house, the buildings and walls thereof were in a sinking and damaged condition, and the said Clarkson, being anxious to have the said house, if possible, in a fit and proper condition for his business, with the assent of said Morrison, did expend large sums of money in endeavoring to repair the same and prop the walls thereof.”

      Glover & Richardson and C. Gibson, for plaintiff in error.
    I. The court erred in sustaining the demurrer to the first cause of action. The contract imposed upon Morrison an obligation in favor of Clarkson to secure the erection of the pork-house. (11 Term. 491; 84 Maine, 309.)

      II. Also in sustaining the demurrer to the second cause of action. (Cummings v. Arnold, 3 Mete. 486; 10 Ad. & EL 57.)
    III. The motion to strike out the third and fourth causes of action should have been overruled.. (Cunningham v. Day, 2 S. & R. 1; Rodigue v. Curcier, 5 Binn. -31; Farmers’ and Mechanics’ Bank v. Israel, 6 S. & R. 294; Donner v. Shaw, SFost. 125; I Miles, 67.)

      Todd and Krum, for defendant in error.
   Leonard, Judge,

delivered the opinion of the court.

The main question is as to the proper construction of the articles of agreement upon which the first and second counts of the last amended petition were founded. It is supposed, on one side, that this instrument created a personal obligation against Morrison, not only to grant a lease on the pork-house to Clarkson when it should be erected, but also to cause it to be erected as prescribed in the articles; while, on the other side, it is insisted that the obligation to ereet the building was exclusively upon Collins ; to enable him to do which, money was ■ to be advanced to him by both Morrison and Clarkson ; and that the only obligation upon Morrison was to make the lease when the building should be erected, and to accept Clarkson’s advance of a thousand dollars to Collins as a payment of the' first half year’s rent.

To enable us to put a proper construction upon this agreement, we ought to be made acquainted with the circumstances that surrounded the parties at the time it was entered into ; but-the only light we have on the subject is what is disclosed by the instrument itself. Judging from the written articles, we should infer that Collins was the real owner of the leasehold interest upon which the pork-house was to be erected, and that he was indebted to Morrison, who held this and other property belonging to Collins in trust to secure that indebtedness ; that these two parties — Collins and Morrison — were desirous of making this property productive — the former as owner, and the latter as a lien creditor — -and that Clarkson desired to secure the use of the house as soon as it should be erected, in order to carry on his business in it. The words of the'instrument do not impart an obligation on the part of Morrison to have the building erected ; but Collins expressly binds himself to do this, and, to enable him to do so, each of the other two parties — ■ Morrison and Clarkson — expressly oblige themselves to make certain advances of money to him; and the only express undertaking in the instrument on the part of Morrison in favor of Clarkson, is to grant him a lease of the building as soon as it should be erected, and to allow the thousand dollars advanced by Clarkson to Collins to go in extinguishment of the first half year’s rent to become due upon the lease. It is argued, however, that Morrison was the real owner of the building to be erected, and that Collins was only interested in it as the contractor for its erection, and that therefore the contract, as between Morrison and Clarkson, ought to be construed as importing not only what was expressly agreed between them, but also that the building should be erected as provided in the agreement, so as to make Morrison liable for all the damages occasioned by the non-completion of the building. We think, however, that the ground here suggested for putting a construction upon these articles, not only not called for by the words of the agreement, but contrary to the apparent meaning of them, has no existence in fact, so far as we are able to judge from the recitals and stipulations of the contract; and that instead of Morrison being the real beneficial owner of the leasehold interest in the lot on which the building -was to be erected, it belonged, as before suggested, to Collins, who was interested in the proposed building as owner, and not as a building contractor ; and that Morrison’s interest in the premises was only as the creditor of Collins, having a lien upon the property for the security of his debt. But whether we be correct or not in these conclusions as to the relations of the parties to the property, we are satisfied that the words of the instrument, considered by themselves, will not bear the construction the plaintiff seeks to put on them, and that we are not authorized by the surrounding circumstances, so far as they are disclosed by the articles of agreement, to give them any other than their grammatical construction. The result is that upon the written agreement the plaintiff is not entitled to recover for the non-completion of the house, nor can he treat the thousand dollars, advanced by him to Collins, as money advanced under the agreement upon the credit of Morrison. The demurrer to the first and second counts we think therefore was well taken.

It only remains to consider the propriety of striking out the third and fourth counts, filed under a general leave to amend, on the ground that they brought into the record new causes of action not embraced in the original petition. In this particular we think the court erred. The original and first amended petitions are very inartificially drawn, but enough is shown to warrant the filing of the third and fourth counts. The third count is upon an oral promise of Morrison for the completion of the building, and the fourth count for money expended by Clark-son for Morrison. Both the original and the first amended petitions allege an oral promise on the part of Morrison to complete the building, and also contain an allegation of the expenditure of money upon the building by the plaintiff with the assent of Morrison. These matters, as before suggested, are very imperfectly stated, but enough is stated, in our opinion, to authorize the amendments made in the third and fourth counts. We do not know that this will avail the plaintiff any thing under ' the opinion now expressed in reference to the construction of the written agreement, but if the plaintiff have a right of recovery independent of the written contract, as is alleged in these counts, we should be unwilling to deny him redress on account of the imperfect manner in which his cause of action was originally stated.

Let the judgment be reversed and the cause remanded.