author: Scott, Judge Ryland, J.

text:
    Reaume et al., vs. Chambers et al.

    1. The-estate of tenancy hy the curtesy is coevahin existence in thjs state with'-, dower. It’was introduced by the-territorial act of July 4th, .1807.
    2. Where a tenant by the curtesy makes a conveyance, that would, if he were - seized in fee, give the grantee an estate for his (grantee’s)'life, held, that-the-grantee-takes an estate for the life of the grantor.
    3. Where a tenant hy the curtesy executes a conveyance which operates to - transfer an estate for the life-of such grantor, held, that so long as-this estate is outstanding, it prevents a recovery of the land by those claiming under the wife of such tenant hy the curtesy.

      4. Lindell v. McNair, (4 Mo. 380,) explained and affirmed. The case of Litidell v. McNair merely decided that a conveyance, executed by husband and wife, after. January.,19,1816, (the- date of, the introduction o£. the common-. law) and before June 22, 1821, (the date of the “ act to enable husband and wife to convey real estate belonging to the wife,”) in conformity to the-statute law then in force, regulating conveyances and the relinquishment of dower interests, was effectual to convey real estate belonging to the wife. After the introduction of the common law, the Spanish law had no force here.
    5. In order that a deed of a married woman may effectually convey her estate, the requirements of the law must he complied with. If it appear from the face of the deed that the deed has not been executed in the manner required by law, there can be no presumption of its proper execution as against her.
    8. A deed executed November 16, 1819, in Illinois, by husband and wife, and acknowledged before a notary public there, is ineffectual to convey the wife’s real estate in Missouri.-
    7. Where a deed, wanting words of perpetuity, is written on the back of another deed conveying an estate in fee, and contains the fallowing clause— “ have sold, ceded, released, and transferred all their part of the land sold by their co-heirs in the sale aboveheld, that this reference, is not of such a character as to enlarge the life estate conveyed to a fee simple.
    8. Actual seizin of the wife’s land is not necessary to entitle the husband tocurtes.
    9. A right of entry or of action for the possession of land may accrue to a married woman. A married woman having aright of entry which accrued before December 1st, 1835, may bring her action within twenty years after becoming discovert.

      Writ of Error to St. Louis Circuit Court.

    This was an action in the nature o£ an action of ejectment, brought by Paul Reaume and others, to recover possession of one-fifteenth part of certain premises in the possession of defendants. The premises claimed are a portion of a lot of one by forty arpens,- situate in the St. Louis or Big Mound prairie, in the city of St. Louis, and confirmed by act of congress to the representatives of Francis Moreau. Both plaintiffs and defendants claim under representatives of the said Francis Moreau. The plaintiffs claim immediately and directly through their mother, Marcelite Reaume, wife of Pierre Reaume, one-eighteenth part of the piece of ground in controversy in the present suit, and one-ninetieth part of the same through their great- aunt, Marie Collin, the daughter of the said Francis Mareau. The defendants claim title as stated below in the stated case which follows, and which fully sets forth the facts of the case :
    “ The facts in this ease were agreed ; both parties excepted to the decision of the court, and the following case is agreed upon, and that the above cause be open to objections by either party ; that the opinion of the Supreme Court may be had on the several points made respectively by the parties, and essential to the legal adjustment of their rights.
    “ The plaintiffs are children of Pierre Reaume and'Marcelite his wife. The said Marcelite was the daughter of Louise Moreau, who was the daughter of Franpois Moreau and wife of Joseph Menard. Louise, wife of said Menard, died before 1818^ and left surviving her three children, one of whom was said Marcelite, married to Pierre Reaume in 1815, and'died in 1834, leaving the plaintiffs, her children and heirs at law, and her husband, who is yet living, surviving her. The plaintiffs are aged as follows : Odille, aged 37 years in November, 1852, and married at 18 years of age ; Paul Reaume,' aged at same time 33 years of age ; Augustus, aged 31 years; Leonard, 29 years ; Francois, aged 24 years. Both parties claim under representatives of Francjois Moreau, who died before 1800, leaving seven children, viz : Joseph, Alexis, Louis, Angelique (married to Antoine Mallet), Ellen (married to Pierre Céné), Louise (married to Joseph Menard), Marie, called also Manette (married to Louis Colin). Of these children, Louis, forty years before the trial, died intestate and without issue ; Louis Colin, husband of Marie, died in March, 1840, intestate and without issue ; his wife died in November, 1840, intestate and without -issue : they were married prior to 1818. The remaining children of Framjois Moreau left lineal descendants.”
    The defendants claim title under the deed of which the following is a copy, and also a copy of deed from P. Reaume and wife, endorsed on said original deed, the whole being on one paper. The original may be shown to the court, as it was to the Court of: Common Pleas :

      “ Sachent tous ceux’ qui ces présenles verront, que nous soussignés, Joseph Hortiz et Eleonore mon épouse, Joseph Menard et Aurore Crely mon épouse, Pierre Cené et Helen Moreau mon épouse, Antoine Mallet et Angélique Moreau mon épouse, Manette Moreau, Joseph Moreau, Alexis Moreau, et Ositte mon épouse, tous héritiers de Eramjois Moreau, décédé, pour et en consideration d’une somme d’ argent qui nous a été il y a quelque terns payé á notre pleine et entiere satisfaction par Mr. Pierre Chouteau, senior, et aussi pour la somme d’ une piastre, argent légal des Etats Unis, qui nous a été payée a chacun de nous avant la signature de ces presentes, et dont par ces présenles nous donnous pleine et entiere quittance au dit Pierre Chouteau, et le déehargeons, lui, ses héritiers, hoirs ou ayant cause, nous avons vendu, cede, quitté, delaissé, abandono 1 et transportó, comme de fait et par ces presentes nous vendons, cedons, quittons, delaissons, abandonnons et transportóos au dit Pierre Chouteau, senior, ses héritiers, hoirs ou ayant cause, tous et chacun de nos droits, titres, actions et pretentions quolqu’ elles puissent étre tant en loi comme en cour d’ équité, que nous ou l’un de nous pouvons avoir, ou pout-avoir, a un certain morceau de terre, situé au nord de la ville de St. Louis, dans le territoire du Missouri; le dit morceau de terre contenant un arpent de front sur quarante arpens en profondeur, le front bornó et determiné par la ligne ou trait quarré de toutes les térros situées sur la rnéme ligne de front, au sud par la terre concedée á Lirette, au nord par une terre concodée a . Vien et aujourd’ hui la proprieté du dit Pierre Chouteau, et a Pones t par les terres vacantes. Garantissant la dite terre libre de tous dons, dettes, douaires au hypotheque ; et la garantissant chacun de nous en particuliers et avec notre épouse, contre nos héritiers ou ayant cause tant en loi comme on cour d’ équité. En foi de .quoi, nous les parties ci-devant designíes, avons signé et seellé le present, a St. Louis, lo 8 Septembre de-P année mil huit cent dix-huit.

      “ Les mots, avant la signature de. ces presentes, approuvés efc interlignés a la premiere page. _

    sa “ Antoine X Mallet, marque. (L. S. )
    “Marie Collin, his (L. S.)
    “ Joseph X Menard, mark. (L. S.)
    sa “ Joseph X Moreau, marque. (L. S.)
    “ Alexis Moreau, (L. S.)
    sa “ Qsitte X St. Andre, femme (l. s.) marque, d’ALEXIS MOREAU,
    her “ Angelique X Moreau, mark (L. s.)
    his “ Joseph X Orteast, mark. (L. s.)
    her “ Oro X Menard, mark. (L. S.)
    her “ Lenor X Orteast, mark. ' (L. S.)
    his “ Pierre x Cene, mark. (L. S.)
    her “ Ellen x Moreau, mark. (L. S.)
    , “ Signé efc scellé en presence de — ”

      “ State or territory of Missouri, county of St. Louis. Personally came and appeared before me, the undersigned, a justice of the peace for the county aforesaid, Joseph Menard, Joseph Orteast, and Oro Menard and Leonor Orteast, who in my presence signed the within instrument of writing, and at the same time acknowledged it to be their and each of their hands and seals, acts and deeds, for the purpose therein contained, and that they executed the same of their own free and voluntary will.
    “ In witness whereof, I have hereunto set my hand, at my office, this ninth day of November, in the year of our Lord one thousand eight hundred and twenty. '
    “Thomas R. Music, J. P.”
    “ Saehent tous ceux qui les presentes voiront, que Pierre' Reaume, a cause de Marceline son épouse, filie et héritiere de Joseph Menard et Marie Louise Moreau, pour la consideration de la somme de vingt piastres qu’il reconnoissent avoir repu comptant du Sieur Pierre Chouteau, Sen°? de St. Louis, lui ont yendu, cedé, quitté et transporté toute leur part de la terre yendu par leur cohéritiérs dans la vente cidessus. En temoignage de quoi, ils ont signes et scélé ce sixibme jour du mois de Novembre, Pan mil huit cent dix-neuf — en presence des temoins, soussignés.
    sa “ Pierre X Readme, .(seal.) marque.
    sa “Marceline X Reaume, (seal.) marque.
    “ Raphael Widen, )
    “ Pierre Menard.” )

      “ State of Illinois, Randolph county, ss. Be it remembered that before me, Raphael Widen, notary public for the county of Randolph, personally came the within named Pierre Reaume and Marceline his wife, who severally acknowledged and declared that the foregoing sale for their respective part of a tract of land in the within deed described, from them to Pierre Chouteau, senr., was their voluntary act and deed, for the purposes therein expressed.
    (Seal.)
    “ In testimony whereof, I, Raphael Widen, have hereunto set my hand and affixed the seal of my office, this 6th day of November, A. £>. one thousand eight hundred and nineteen, and of the independence of the United States the forty-fourth.,
    “Raphael Widen, N. P,
    “ Filed for record, June 6th, 1822.
    “ A. Gamble, Clerk.”
    “ Pierre Chouteau, the grantee in said deed, conveyed to John Mullanpky, by deed bearing date the 30th day of October, 1819. The defendants have all the title of said John Mullanpky in the premises in question. In relation to the deed from Antoine Mallet and others to Pierre Chouteau,'the following facts were admitted: That it was written by Franqois M. Guyol, who, at the date-thereof, resided in St. Louis, and was a justice of the peace, and did the business of conveyancing for some of the then inhabitants of St. Louis. He was a Frenchman, and went from St. Louis to New Orleans to reside, in 1820, and died there about 1847 or 1848. The signatures, Antoine Mallet, Angelique Moreau, Joseph Moreau, Osi'tte St. André and Pierre Cené, were also in the handwriting of Guyol. The words ‘ sa marque? are also in the handwriting of Guyol, where he wrote the names ; that the name of Ellen Moreau is in the handwriting of E. H. Hawley, who was formerly a justice of the peace in Florisant, but not acting- at the date of the supposed deed. The interlineation is in 'Guyol’s handwriting, and the note of it at the bottom of the instrument, as also are the words, ‘signed, sealed,’ &c.*at the bottom. Alexis Moreau, Joseph Moreau anc^Ositto St. Andró, admitted their signatures to the instrument, in the fall of 1818. About thirty-two years before the trial, Mallet and Cíné, who then resided at Florisant, at one time returned from St. Louis with goods- in a cart; about that time or soon after they said they had sold their land in St. Louis to Mr, Chouteau. Their wives went with them to St. Louis at the same time, and returned with them. Neither of the wives said any thing about the sale, nor is there any evidence that it was spoken of in their presence. The signature of Marie Collin to said instrument is in the handwriting of her husband, Louis Collin. The deed from Reaume and wife, in the same paper, is in the handwriting of Raphael Widen, and his name subscribed thereto as a witness, is in-his handwriting. The name of Pierre Menard, a subscribing witness thereto, is the’proper handwriting of said Pierre Menard, and the certificate of acknowledgment thereon is in the proper handwriting of said Widen. Said Widen and Menard are both dead, and died before the commencement of this suit. The certificate and signature of Thomas R. Music on said instrument are in his handwriting, and he was at the date thereof an acting justice of the peace. The signatures of Joseph Menard and Joseph Orteast, and Oro Menard and Eleanor Orteast, are in the handwriting of said Thomas R. Music, who died more than ten years since. Joseph Menárd and Eleanor Or-feast were children of Louis Menard, before mentioned. The endprsement on the deed, i heirs of Moreau to Chouteau,5 is in 'Guyol’s handwriting. The words on the instrument, ‘ for Mr. Mullanphy,5 are in the handwriting of E. Baker, who Was clerk in the recorder’s office of St. Louis county, at the record of said instrument. When a deed was left at that date, it was usual to make endorsement of the name of the person to whom to deliver it. The words, ‘ for Mr. Mullanphy,5 would indicate, according to the then practice in the recorder’s office, that Mr. Mullanphy left the instrument for record. It was recorded in Tune, 1822.
    “ It is also admitted that John O’Fallon was executor of the estate of John Mullanphy, who died in August, 1833 ; that said executor found said deed amongst the deeds and papers of said Mullanphy, after his death, in a trunk, where such papers were deposited; that it has been since in the. custody of said executor and the heirs of said Mullanphy, and was produced on the trial by the defendant from such custody — the wife of Charles Chambers being a daughter of said John Mullanphy.
    “ It was also admitted that John Mullanphy, under the deeds herein mentioned, took possession of the land in controversy in the spring or summer of 1820, and built a house thereon in the fall of 1820, and held possession until his death in 1833 ; that the defendants claim under said John Mullanphy, and have his title, and have been in possession of said premises since the death of said John Mullanphy, claiming title thereto. Pierre Chouteau died in 1849.' Pierre Heaume and wife were never actually in possession, occupying themselves the land in con* troversy. It was a field lot, which had been occupied by Francis Moreau prior to his death, which was in 1798, and was not held adversely by any one at the date of the deed from Pierre Heaume and wife to Pierre Chouteau, sr.
    “ The defendants, upon the facts as admitted, read the several deeds in evidence, and claimed that .the deed to Pierre Chouteau from Antoine Mallet and others was duly executed. The plaintiffs claimed l-15th of the premises in question'under the evidence. The damages and monthly value were agreed upon, and the 'Court of Common Pleas, gave judgment for the plaintiffs for an undivided ninetieth part of the premises in question.
    The plaintiffs and defendants both filed motions for review, which were overruled, and both bring the cause to this court by writs of error. The plaintiffs claiming l-15th of the premises, and defendants claiming a judgment in their favor.
    “ The suit was commenced in the Court of Common Pleas • on the 7th of July, 1851.
    “ The land included in the deed to Pierre Chouteau, and conveyed by him to Mullanphy, was partitioned among the heirs of John Mullanphy, by petition of the heirs addressed to the Court of Common Pleas, which made an order to partition at the August term, 1841. 'The commissioners reported at May term, 1842, which was approved 14th May, 1842, and recorded 17th March, 1843, under whieh the heirs of Mullanphy now hold in severalty.”
    The case was submitted to the court sitting as a jury, upon an agreed statement of facts, and the court found that the plaintiffs were entitled to recover one-ninetieth of the premises sued for.

      Williams and Glover Richardson, for Reaume and others, plaintiffs in the court below, plaintiffs in errror, and also defendants in error here,

    1. The-main question involved in this cause springs up upon the construction of the instrument executed by Pierre Reaume and wife, as is set forth in the stated case, and of which the following is a correct translation : “Know all those who shall see these presents, that Pierre Reaume, for the'sake of (a cause de) Marceline, his wife, daughter of Joseph Menard and Marie Louise Moreau, for the consideration of the sum of twenty piastres, which he acknowledged to have received, ready money, from Mr. Pierre Chouteau, senr., of St. Louis, to him have sold, made over, parted with and transferred all their part of the land sold by their co-heirs in the sale above. In witness,” &c. At the date o£ this paper, (November 16, 1819,) the wife owned the fee in the land mentioned, by inheritance from her grandfather. She had never been in possession of the land, and at the date of this paper it was not in the possession of any one claiming adversely to her. What estate did this deed create in Chouteau ? If the common law prevailed here at its date, then it certainly was insufficient to convey her real estate. It has been repeatedly decided by our Supreme Court that the act of 1816, introducing the common law, rendered it necessary that an instrument conveying land should have a seal, and required the word heirs therein to create a fee simple estate in the grantee. If the instrument executed by Pierre Reaume and wife be a deed at all, it was the deed of the wife-, she being the main grantor, and containing no words of inheritance, could convey only a life estate to Chouteau, the grantee. 2. Pierre Readme and wife were married prior to 1816, and curtesy was not introduced into this state prior to 18-16. 8. The law of the place where land is situate, existing at the time of a marriage, governs the rights of the husband as to the estate then owned by the wife. (Sto. Confi. of Laws, § 187' n. 3 ; Riddick v. Walsh, 18 Mo. 520.) 4. If Pierre Reaume was tenant by the curtesy initiate, he had an estate for the life of the wife; this estate was separate from curtesy consummate, which did not exist until the death of the wife. (Watson v. Watson, 13 Conn. 83 ; Starr v. Pease, 8 Conn. 541; Wheeler v. Hotchkiss, 10 Conn. 230 ; 2 Binn. 80; 16 Mass. 188; 5 Dana, 257; 5 Cow. 102.) 5. The husband had a present estate that he could convey. If the deed passed that or could pass it, it will not be presumed to pass one that was contingent or to be hereafter acquired, unless there were some words of estoppel, &e. (McCorry v.' King, 3 Humph. 267; see 8 Humph. 325.) 6. If Pierre Reaume was tenant for life, he could create an estate less than his own, and it is to be presumed that he intended doing so. (1 Cruise, § 95.) An estate for a man’s own life is higher than one for the life'of another. (4 Bent, 26.) 7.. If Reaume did convey to Chouteau an estate for his life, it merged into the larger estate in Chouteau ; that is the estate for Chouteau’s life. (4 Kent, 99-103.) 8. To give curtesy,'there must have been possession of the land, at least such a seizin as would enable her children to inherit from her, &c. (4 Kent, 29-30 ; 2 Black. 312; 5 Cow. 74 ; 1 How. U. S. 87.) . 9- No deed can be presumed against Mrs. Collin. 10. Under § 11, of art. 3, of the act of 1835, twenty years were allowed'to Mrs. Collin, instead of ten. Her right of action accrued prior to 1835 ; indeed, prior to 1818, or 1825, and therefore the 11th section of the 2d article of the above act gave her twenty years in which to sue.
    The court is also referred generally to the following cases : Lindell v. McNair, 4 Mo. ; Picotte v. Cooley, 10 Mo. 312; Childress v. Cutter, 16 Mo. 24 ; Norcum v. Mouse, 12 Mo. 588.

      Haight and Shepley, for Chambers and others.
    1. The deed from Pierre Reaume and wife, of the 16th of November, 1819, passed their interest in the premises to Pierre Chouteau. This conveyance is upon the same paper with the original deed. It is in French, and is correctly translated thus: “Know all those who shall see these presents, that Pierre Reaume, in right of (or together with) his wife Marceline, daughter and heiress, of Joseph Menard and Marie Louise Moreau, for-the consideration of the sum of twenty dollars, which they acknowledge to have received in cash from Mr. Pierre Chouteau, senr., of St. Louis, have sold, ceded, released and abandoned all interest in the land sold by their eo-heirs by the above act of sale. In witness whereof, they have signed and sealed this 16th of November, 1819, in presence of the following witnesses.” This deed was duly signed and sealed by Pierre Reaume and wife; and the only question of any difficulty upon it is, that it is to Pierre Chouteau, and the word heirs are not mentioned. Our answer to this is, it refers to the deed on the same paper, and. adopts, by necessary inference, the language of the conveyance. They sell all their part of the land sold by their co-heirs in the above or preceding sale. The just, fair and true interpretation of the language is, they sell as their co-heirs have sold, and adopt their deed. They sell all their part, or all their interest in the land above described, as sold by their co-heirs. The rules of interpretation upon such a deed of so ancient a date, should be liberal and not verbal. The intention of the parties should govern; and there is enough on the face of this instrument to justify the conclusion that they intended to convey, in as ample and full a manner, and as great an estate as their co-heirs had conveyed in the instrument on the same paper to ■which they refer; although the word heirs was in general necessary, after the introduction of the common law, to convey a fee simple, yet where the design was evident to convey a fee by reference to other deeds, or by the use of equivalent language, a fee passed. Thomas’ Coke, p. (in brackets,) gives instances. (Hilliard on Real Property, p. 606.) The case put in Coke is where a grantee reconveys the lands “ as fully as they were granted to him.” (Lytle v. Lytle, 10 Watts, p, 260 ; Shep. Touch. 102 ; 4 Ring., N. 0., 456; 11 Mete. 84.) No argument can be drawn from the phraseology of the deed. The persons conveying are evident from the'use of the plural all through the deed. 2. As to the interest derived by the plaintiffs under their mother, it was subject to the life estate of the father; and as there is no dispute but he made a conveyance effectual to pass a life estate, it is good so long as he lived. ■ On this point our position is : Pierre Reaume, at the date of his deed to P. Chouteau, was tenant by the curtesy initiate, and had an estate for Ms own life, which was effectually transferred by that deed. (5 Cow. 75 ; 1 Hilliard on Real Prop. 111.) Supposing that the deed of Pierre Reaume and wife passed only a life estate, it passed an estate for the life of the grantor.’ (4 Cow. 324; 1 Hill. 100,101, 112, 116 ; 8 Johns. 262.) 8. The plaintiffs cannot recover any interest which Marie Collin had in said premises, and the court ought, upon the facts as agreed on, to have found for defendants. The deed was properly in evidence before the court. A deed thirty years old, and possession under it for that period, and found in the proper custody, and not attended with any circumstances of suspicion, may be read in evidence as an ancient deed. (1 Grant on Ev. 638 ; Wilson v. Betts, 4 Denio, 201; 3 Johns. C. 283-286 ; Carroll v. Hutchinson, 1 Harr. & John. 167; 2 B. Monroe, 429 ; 5 Barr. 492.) These presumptions arise as well against married women as against others. (See Bustod v. Gates, 4 Dana, 441 ; 16 Pick. 137 ; 17 Pick, 255.) The deed was properly in evidence. We are now to consider its effect. Though not signed by the husband, the execution of the deed by Marie Collin was effectual to pass her title in the estates described in the deed. The cases decided by this court have already decided this question. They hold that a conveyance by a feme covert after 1816, aud prior to 1821, is as effectual to pass her interest, if made with her husband’s consent, as if she were a feme sole. (Lindell v. McNair, 4 Mo. 330; Picott v. Cooley, 10 Mo. 312 ; Youse v. Norcum, 12 Mo. 549.) They decide such conveyances to be effectual under the Spanish law; and in the absence of any provision for conveyances by married women, the same mode of transfer remains. As to power under the Spanish law of a feme covert to pass her paraphernal property, see 1 White’s Collection, marginal pages, 53, 54 ; Brown’s Civil and Admr. Law, 269 ; Domat’s Civil Law (Cushing’s ed.) part 1, book 1, sec. 4, p. 390-1-2-3. By Spanish law, no writing was necessary to pass land. The distinction between real and personal property was unknown. The paraphernal property of the wife was as absolutely under her disposition and control as if she were a feme sole. Authentic acts proved themselves, being made before public officers ; other contracts, whether verbal or written, required proof. That is supplied in this case, as we show that it was done in the presence and with the consent of the husband, he writing her. name. There is a case in 12 Mar.-242, where it is said that wife could not alienate without husband’s consent; but this is a modification of the doctrine which had its rise in the Louisiana code, but it makes no difference in this case, as we prove'the husband’s consent. Thirty years’ possession under a deed which comes from the right custody, and unattended with any suspicious circumstances, proves itself. (Coventry on Conveyances, 12 — 24 L. Lib. ;"Doe, d. v. Woolley, 8 B. & Or. 22 ; 3 Whart. 149.) 3., Upon the supposition that the deed of Marie Colin was not effectual to pass her estate, the remaining question is upon the statute of limitations. We say that those claiming under Marie Colin are barred by the act of 1835, § 4. Marie Colin was a feme covert when she acquired her title. Her husband died in March, 1840, and she died in November, 1840. The possession of defendants commenced in 1820, and of course twenty years had run at the time of Louis Colin’s death. The statute began to run against Marie Colin in March, 1840, the date of her husband’s death ; and of course continued to run against her heirs after, her death; more than ten years elapsed between her husband’s death and the commencement of suit. The fourth section of the statute of 1835 is : “If any person entitled to commence any action in this article specified, or to make any entry, be, at the time such title shall first descend or accrue, a married woman, the time during which such disability shall continue shall not be deemed any portion of the time in this article limited' for the commencement of such suit, or the making such entry; but such person may bring such action or make such entry after the time so limited, and within ten years after such disability is removed, but not after that period.” See also section 5, to the same effect. The reading of this statute would seém to be very plain, although persons under disability are protected ; yet when the disability is removed, the time begins to run, and they have ten years after such disability is removed. There can not be successive disabilities in different persons claiming the same title. It will be conceded, when the statute has commenced running, its effect or operation will not be stayed by any disability in the person upon whom the titles may descend, or to whom it may come. The plain and obvious meaning of the statute is, that persons under disability, when ■their right of entry or of action accrued, shall have ten years after the removal of the disability in which to commence their suit. S-ee. 7, art. 3, p. 305 : “ No person shall avail himself of any disability enumerated in this act, unless such disability existed at the time of this right of action, or entry accrued.” .Section 11 of art. 3 was supposed to give the act a different construction : “ The .provisions of this act shall not apply to any actions commenced, nor to any case where the right of action or of entry shall have accrued before the time when this act takes effect, but the same shall remain subject to the laws now in force.” When did the right of action or of entry of Marie Colin first accrue.? Clearly she had neither the right of action nor of entry until her husband’s death. During his life he had the usufruct — the possession — his' life estate was liable for his debt — might be assigned or transferred — the wife was precluded from any separate or distinct" enjoyment until his death. She could not bring an action ; her right of action did not, therefore, accrue until her husband’s death, in March, 1840. Then her right off action accrued, and then the statute began to run. Under a similar statute in New York, this construction has been maintained. (Jackson v. Johnson, 5 Cow. 74 ; Wilson'v;. Betts, 4Denio, 201; Carpenter v. Liebenham, .2 Barb. Chy. Rep. 314 ; 2 Preston on Abstracts, 341 ; 7 B. Monroe, 236. See also Hilliard on Real Property, ch. 21, Statutes of Limitations, vol. 2, p. 193-4; 1st ed. of vol. 2, .and cases there cited; 2d ed., p. 778-181 of vol. 2.)

         This deed is correctly translated as follows: “ Know all those who shall see these presents, that we, the undersigned, Joseph Ilortiz and Ellenore, my wife) Joseph Menard and Aurore Crely, my wife j Pierre Ceno and Helen Moreau, my wife) Antoine Mallet and Augelique Moreau, my wife) Manetto Moreau, Joseph Moreau, Alexis Moreau, and Ositte, my wife; all heirs of Jfranois Moreau, deceased, for and in consideration of a sum of money, which was paid to us sometime ago, to our full and entire satisfaction, hy Mr. Pierre Chouteau, sr.; and also for the sum of one dollar, lawful money of tilo United States, which has been paid to each of us, before the signing of these presents; and of which we do, by these presents, give to the said Pierre Chouteau, his heirs and assigns, full and complete acquittance and discharge; we have sold, granted, quit claimed, remised, made over, and conveyed, as in faot, and hy these presents we do sell, grant, quit claim, remise, make over, and convey to the said Pierre Chouteau, sr., his heirs and assigns, all and each of our rights, titles, actions and claims, whatever they may be, which we or each of us has or can have, both in law or in a court of equity, to a certain parcel of land, situated north of the village of St. Louis, in the territory of St. Louis; the said parcel of land containing one arpent in front hy forty arpens in depth; the front bounded and limited by tho line, or ‘ trait quarre’ of all the lots situated on the same front line; on the south by land conceded to Lirette; on tho north, by a lot conoeded to Vien, and today, tho property of said Pierre Chouteau; and on tho west, by vacant lands; guaranteeing the said lands free from all gifts, debts, liabilities, or incumbrances; and each one of us, with our wives, guaranteeing it individually against our heirs or assigns, as well in law as in a court of equity. In testimony of which, we, the parties hereinbefore named, have signed and sealed the present, at St. Louis, this 3d day of September, of the year eighteen hundred and eighteen.”
      The words “before the signing of these presents,” approved and interlined on the first page. Signed and sealed in the presence of.

       Mr. Glover’s "brief is not to be found on filo, and it is not attempted to set forth the line of argument pursued by him»- — [Hep.

   Scott, Judge

delivered the opinion of the court.

1. Pierre Reaume marrying in 1815,.by the birth of issue during the same year became tenant by the curtesy initiate. '-The estate of tenancy by the curtesy must be regarded as co•eval in existence with the estate in dower. When the law broke idowm the community existing under the Spanish government and created dower for the wife, it at the same time recognized the existence of the tenancy by the curtesy for the husband. In the case of Riddick v. Walsh, (15 Mo. 519,) this court held that the territorial act of July 4, 1807, abolishéd the Spanish law of community and gave the wife dower in lieu of her interest under the Spanish law. As a tenancy by the curtesy is recognized by the same act, it must be intended that the husband’s right in the community was taken away at the same time, and the curtesy given as a part equivalent for it.

2. P. Reaume, being tenant by the curtesy initiate, and having a life estate by virtue of his marriage, his conveyance operated to convey to Pierre Chouteau an estate during his (Reaume’s) life. He had no power to convey a life estate to Chouteau, as his interest in the estate did not permit it. Had Reaume been seized in fee, his conveyance to Chouteau would have given him (Chouteau) a life estate, that being deemed the most valuable in law. (Co. Lit. 1 vol., 30, a; 1 Hilliard on Real Property, 120.

3. Pierre Reaume being still alive, his life estate is outstanding in Chouteau or his representatives, and prevents a recovery by the plaintiffs, who are children of the marriage of P. Reaume with their mother as to the’share of their grandmother, Louisa, as well as to the share of Lewis, who died without children prior to the conveyance to Chouteau in 1819, and of whose interest so much as was owned by the mother of the plaintiffs passed by Reaume’s deed.

4. The case of McNair v. Lindell, (4 Mo. 380,) decides nothing more than that a conveyance made by the husband and wife during the period between the introduction of the common law on January 19th, 1816, and the statute enabling husband and wife to convey real estate belonging to the wife, passed on the 22d June, 1521, in pursuance to the statute law then in force regulating the conveyances of married men’s estates and the mode of relinquishing dower interests therein, will be effectual to convey the real estate belonging to the wife. That case goes so far and no further. It leaves it a matter of doubt. ■whether the determination rested on the common law or on the Spanish law. If on the Spanish law, then the Spanish law was retained only so far as to sustain that cáse and those similarly situated, and no further. The inducement which has prevailed with this court heretofore, in upholding- that opinion, was a persuasion that men acting under it had acquired rights which it was deemed unwise to disturb. After the introduction of the common law, the Spanish law no longer had any existence here. It has only been regarded in the interpretation of contracts which had been made before its abrogation and on the adjustment of rights which had accrued prior to the introduction of the common law, just as we would look at this day to the laws of Spain, in interpreting a contract which had been made in that kingdom.

5. The principle that ancient deeds accompanying the possession, and produced from the appropriate custody, prove themselves, has no application to this case. At the date of the deed in question, the law prescribed a mode by which estates should be conveyed. If that law was observed, this court has held that married women might convey their estates by complying with its provisions. If the law then in force regulating conveyances has not been complied with, how can we presume that a deed has been regularly executed when we see from the very instrument produced, in whose aid the presumption is sought, that the law, in almost every particular, has been violated ? Can we presume that the law has been complied with when we see, from the very face of the deed, that it has not been ? When an instrument itself tells us that the law has not been observed in its creation, how can we, from length of time or any other consideration, say that it has been ? Can a presumption in favor of a deed arise when the deed itself tells us that such a presumption is false ? The statute in force at the date of the deed required the wife to join in it with her husband, and acknowledge it before the proper officer, and to declare that she executed it voluntarily and without compulsion or undue influence of her husband. Here the wife’s name alone appears to the deed, and it is not acknowledged at all. (Beall v. Lynn, 6 Harr. & John. 351.)

6. The deed of P. Reaume and his wife, executed in Illinois, and acknowledged before a notary, is of no validity as against her. There is no pretence that a deed so executed and acknowledged is a compliance with the statute regulating conveyances then in force.

7. The deed, moreover, wants words of perpetuity, which were essentially necessary at its date to create an estate in fee simple. Its reference to the deed, on the back of which it was written, is not of such a character as to enlarge the life estate conveyed to a fee simple. This is one of those cases in which the bare intent of the parties cannot prevail. The law had appropriated certain words for passing a fee simple in real estate, and unless they were used, the intent, however forcibly expressed, could not prevail.

8. As to the question whether actual seizin of the wife’s land is necessary to entitle the husband to' curtesy, we are of the opinion that such an idea never prevailed here. Whatever may be the common law on the subject, the circumstances of the country demand a modification of the rule. Titles to land conferred by the United States, were supposed to give seizin in deed to purchasers. Descents with us depend not on actual seizin, but on the statute regulating descents, and we have allowed the conveyance of lands whilst in the adverse possession of others. (Green v. Leter, 8 Cr.; Cook v. Foster, 2 Gilman, 652: 4 Kent, 30.)

9. Mrs. Colin was a feme covert when her right of entry accrued. It is clear, from the language of the statute of limitations, that a right of entry may accrue to a married woman. The 16th section of the third article of the' act prescribing the times of commencing actions, directs that the provisions of that statute shall not apply to cases where the right of action or entry shall have accrued before the first day of December, 1835, but the same shall remain subject to the laws then in force. By the law in force prior to the 1st December, 1835, a married woman was allowed twenty years within which to bring her action after she was discovert. Mrs. Colin’s husband died in 1840, consequently she had twenty years, from his death within which she might bring her action, her right of entry having accrued prior to the 1st of December, 1835.

Each party having sued out a writ of error on the judgment, the entire judgment is affirmed, each party paying the costs of his writ in this case.

Ryland, J.

I agree to affirm the judgment, but do not assent to all the views taken by Judge Scott. I differ with him in some important propositions laid down in the above opinion.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    Hogan, Respondent, v. Page, Appellant.
    1. A. claiming under B. presented to the old board of commissioners, May 23, 1808, for confirmation, a claim to -a lot of one by forty arpens. He however produced before the board no evidence of any kind showing a derivative title from B. The board, in confirming the claim, use the following language: “ The board grant to the representatives of B. the lot and order a survey,” &c. Held, that this is not a confirmation of the lot to A.; that, in order that the confirmation may enure to the benefit of A., he must show a derivative title from B.
    2. A deed in which the interest conveyed is described as follows, to-wit: “ All the right, title, interest and estate which we or either of us have or may have to a certain tract of land which the said Louis Lemonde, now deceased, but formerly resident, &c., acquired or claimed to have acquired of Auguste Conde, formerly of St. Louis, now deceased, and which land was supposed to have been situated in the Grand prairie, in said county and state, but for which land said parties of the first part have never seen any deed from said Auguste Conde to said Louis Lemonde is not void for uncertainty upon its face.

      Appeal from St. Louis Court of Common Pleas.

    The facts of this case are sufficiently set forth in the opinion of the court, it being entirely unnecessary to set forth the instructions given and refused by the court below.

      Williams and Shepley, for appellant.
    1. The confirmation was not to Louis Lemonde. (6 Peters,- 766 ; 10 Peters, 334; Strother v. Lucas, 12 Peters, 458 ; Stoddard v. Chambers, 2 How. 284; Bissell v. Penrose, 8 How. 316; 8 How. 335 ; Landes v. Brandt, 10 How. 348.) 2. A survey is an integer, and as soon as it is shown to be wrong in any respect, its integrity as a survey is gone. It can not be good for part and bad for part. It is either all good or all bad. 3. The deed from A. Reymond and others, under which plaintiff claimed and recovered, is void for uncertainty and indefiniteness of description of the thing sold. It did not purport to convey, and did not upon its face convey the land in dispute.

      T. Polk, for respondent.
    1. The confirmation given in evidence by the plaintiff enured to Louis Lemonde. (8 How. 337; 6 Pet. 770 ; 12 Pet. 458 ; 10 How. 348; Boone v. Moore, 14 Mo. 420.) United States survey No. 1276, was properly admitted'in evidence. (R. C. 1845, 469; U. S. Statute at large, 325 ; 3 Story’s Laws, 1600.) 2. The title under the confirmation, given in 'evidence by the plaintiff, is a better title than that under the New Madrid location, under Martin Coontz, given in evidence by defendant. 3. Survey No. 1276 is prima facie evidence of the true location, boundaries and extent of the land mentioned in the confirmation given in evidence by plaintiff. (McGill v. Somers, 15 Mo. 87 ; West v. Cochran, 17 How-.) 4. The deed of A. Reymond and others to plaintiff, is not void for uncertainty. The description in the deed accurately and exactly describes the land confirmed. (4 Cruise Dig. 287 ; 4 Mass. 205 ; 10 How. 354.) 5. The court did right in instructing the jury that, in so far as Brown’s old survey of the extérior boundary of the Grand prairie common field was changed by the official survey of 1838, it had no authority.
   Ryland, Judge,

delivered the opinion of the court.

The following is the statement of the case agreed to by the council of both parties, before this court:

This was an action of ejectment, brought in the Common Pleas Court, on the 27th July, 1852, by appellee against appellant, for a portion of a common field lot in the Grand prairie common field of St. Louis, which lot is oüe arpent in front by forty arpens in depth, being U. S. survey No. 1276, confirmed by the old board on the 13th November, 1811. The defendant had possession of the premises at the commencement of the suit, and the damages and monthly value, as found by the jury, were supported by the evidence in the cause.
On the trial, the plaintiff gave in evidence duly certified copy of the minutes of the confirmation by the old board. This was objectedjo as not being properly certified; thereupon the court excluded so much of said certificate as follows, to-wit: Assignee of Auguste Condé,’ and allowed the paper to be read, except the last certificate therein. As a part of said confirmation papers, the concession of said.two by forty arpens to Auguste Oondé, dated 10th January, 1770, recorded in livre terrain, No. 1, p. 31, was also read in evidence.
The notice for the confirmation of the said claim by the old board, was given to the recorder of land titles, on the 23d May, 1808, by Louis Lemonde, for himself, claiming it as his own, and describing it as ‘a tract of land situate Big prairie, district of St. Louis, formerly the property of Mr. Condé, containing one arpent by forty, as appears, by the concession remaining in your office, book No. 1, p. 31.’
“ The confirmation which was of the date of 13th November, 1811, was as follows : ‘ Cert. 1276. Louis Lemonde, assignee of Auguste Condé, claiming one by forty arpens of land, situate Big prairie, district of St. Louis, produces a concession from St. Ange and Labuxiere, L. G., dated 10th January, 1770. The board grant to the representatives of Auguste Condé forty arpens of land under the provisions of the second section of the act of congress entitled An act -respecting claims to land, and passed 3d March, 1807,’ and order that the same be surveyed conformably to possession, (survey at expense of United States,) as ascertained by report of survey dated as above, January 10th, 1770.
“Plaintiff also gave in evidence a certified copy of the said U. S. survey No. 1276, which was objected to as not being properly certified. Said certificate was' as follows :
4 Office of Surveyor General for Illinois and Missouri,
4 St. Louis, September 3d, 1851.
41 hereby certify that the foregoing plat and description of survey No. 1276, in the name of the ‘legal representatives of Auguste Condé,5 and also the statement of interferences, are correctly copied from pages 291 and 292, of book Ej of records, on file in this office.
4 M. Lewis Clark, Surveyor Gen’l.5
44 The plaintiff then gave evidence showing that the title of Louis Lemonde had passed by descent to Angelique Reymond, wife of Abraham Reymond, Ann Fontaine and Baptiste Lemonde ; that said Abraham was the husband of said Angelique, by whom he had had several children, who are still living.
44 Plaintiff then gave in evidence a quit claim deed from Abraham Reymond and Angelique his wife, formerly Reymond, Ann Fontaine, formerly Lemonde, and Baptiste Lemonde, to himself, dated the 2d March, 1850, having proved by said Abraham that said deed had been signed, acknowledged and delivered by himself and wife and the other grantors therein named. The said deed contained the following description of the property conveyed : 44 All the right,' title, interest and estate which we or either of us have or may have to a certain tract of land which the said Louis Lemonde, now deceased, but formerly resident of said city and county and state, acquired or claimed to have acquired of Auguste Condé, formerly of St. Louis, now deceased, and which land was supposed to have been situated in the Grand prairie, in said county and state, but for which land said parties of the first part have never seen any deed from said Auguste Oondé to said Louis Lemon'de.
44 The plaintiff having closed his case, the defendant asked the court to give the following instruction to the jury : 4 Upon the case, as made out by the plaintiff, he is not entitled to recover ;’ which the court refused.
“ The defendant below, appellant here, then gave in evidence title papers tending to show that he was claiming said land under the New Madrid location, made upon certificate No. 145, in the name of Martin Coontz or his legal representatives, for which a patent certificate had issued, dated 17th November, 1822. Defendant then offered in evidence various documents and oral proof, tending to show that the land sued for was improperly and incorrectly located under the confirmation of 1811, by survey No. 1276. Among the documents were, 1st, field notes of Brown’s survey of the outboundary of the Grand prairie fields, made in 1817 ; 2d, township plat.
“Defendants also introduced evidence tending to show that the survey 1276, as well as those north it, up to and including that of Mainville dit Deschene, were extended too far east by nine arpens and thirty-six feet.
“ And having closed his case, the plaintiff introduced documentary and other proof, tending to show that the. land was correctly located by survey No. 1276, and that there was no error .in the extension of the survey of Mainville dit Deschene and those south of it, of nine arpens and thirty-six feet further east than those north of it; also that the said Brown’s outboundary was erroneous south of survey No. 1253, of Antoine Morin, under Alexis Picart.”

Upon this statement arises the main question in the case: does the confirmation by the old board of commissioners enure to Louis Lemonde, putting in him the title to the land confirmed? If it does, then the plaintiff must recover ; if it does not, then the plaintiff’s claim of title is incomplete and he can not recover in this action.

Let us examine this question. This was a confirmation by the old hoard, dated November 13,1811. Among the papers of the confirmation appears the concession of two by forty arpens of land to Auguste Conde, dated 10th January, 1770, recorded in livre, terrein, No. 1, p. 81. The notice o£ the claim filed with the recorder of land titles, on the 23d of May, 1808, by Louis Lemonde, is as follows: “To Frederick Bates, Esq., recorder of land titles for the territory of Louisiana : Sir — Take notice that I claim a tract of land situate Big prairie, district of St. Louis, formerly the property of Mr. Uondé, containing one arpent by forty, as appears by the concession remaining in your office, book No. l,.p. 31. St. Louis, 23d May, 1808.

kis “ Louis X Lemonde, mark.

“Witness: M. P. Leduc.”

.The confirmation is as follows: “Louis Lemonde, assignee' of Auguste Conde, claiming one by forty arpens of land, situate Big prairie, district of St. Louis, produces a concession from St. Ange and Labúxiere, L. G., dated 10th January, 1770. The board grant to the representatives of Auguste Condé forty arpens of land under the provisions of the second section of the act of congress entitled 4 An act respecting claims to land, passed 3d March, 1807,’ and order that the same be surveyed conformably to possession, (survey at expense of United States,) as ascertained by report of survey dated as above,. 10th January, 1770.”

Here the concession was made to Condé in 1770. Leinonde filed the notice of the claim in May, 1808. The board grant to the representatives of Condé forty arpens of land in November, 1811.

Nowhere does it appear among the records of the case that Lemonde filed before the recorder any evidence of his derivation of title from Condé. ' There is nothing showing or stating how he claims title, or showing the nature of his claim. He gives the notice: “ Sir — I claim a tract of land situate in Big prairie, district of St. Louis, formerly the property of Mr. Oondé.” He does not set forth how, nor does he file any evidences of his right to claim — does not show himself an heir or a legal representative of Condé.

The board did not grant to Lemonde, as assignee of Condé. They did not commit themselves to the fact that he was as - signee ; they disregard Lemonde and grant to the representatives of Condé.

The fourth section of the act of congress of 2d March, 1805, has the following among other provisions; “ And every person claiming lands in the said territories, by virtue of the two first sections of this act, or by virtue of any grant or incomplete title, bearing date subsequent to the first of October, one thousand eight hundred, shall, before the first day of March, one thousand eight hundred and six, deliver to the register of the land office or recorder of land titles, within whose district the land may be, a notice in writing, .stating the nature of his claim, together with a plat of the tract or tracts claimed; and shall also on or before that day, deliver to the said register or recorder, for the purposes of being recorded, every grant, order of survey, deed, conveyance, or other written evidence ■of his claim, and the same shall be recorded by the register or recorder, or by the translator hereinafter mentioned, in books to be kept by them for that purpose, &c.,'&c.; provided, however, that where lands are claimed by virtue of a complete French or Spanish grant, as aforesaid, it shall not be necessary for the claimant to have any other evidence of his claim recorded, except the original grant or patent, together with the warrant or order of survey and the plat; but all the other conveyances or deeds shall be deposited with the register or recorder, to be by them laid before the commissioners hereinafter directed to be appointed, when they shall take the claim in consideration. So much of this fourth section of the act of 1805 as required the claimant to deliver to the register or recorder the plat of the tract or tracts, was repealed by the third section of the act of 28th February, 1816, still leaving it the duty to file \he grant, order of survey, deed, conveyance, or other written evidence of title. The fifth section of the act of 3d March, 1807, extended the time of delivering the notices in writing and the written evidences of claims to the register and recorder to the 1st of July, 1808. Under this act, thus extending the time, the notice in the present case was given; this act still speaks of “ the written evidences of claims to lands.”

Let us see what is to be done by the claimant. He is to give notice of the nature and extent of his claim. What is meant by the nature of his claim ? Will it answer to say to the recorder : Sir — Take notice I claim a tract of land formerly belonging to A. B., containing one by forty arpens, as appears by the concession remaining in your office, book 1, p. 81” ? This can not be said to show the nature of his claim. He must go further; show by what means he claims, and then file his written evidence of claim. This notice of claim does not explain its nature nor extent. The words, “ as appears by concession remaining in your office,” do not show the nature or manner of his claim, but allude only to the grant or concession for. the description of the tract conceded.

The acts of 1805, 1806 and 1807 all continue the requisition of delivering to the register or recorder the written evidence of the claim.

The old board, although they use the phrase, “ the board grant” to the representatives of Auguste Condé, did not, in reality grant, nor had the board the power to grant the land. They had power to hear and decide all matters respecting such claims, and to decide, in a summary way, according to justice and equity, on claims filed with the recorder, in conformity with the provisions of the act, and on all complete French and Spanish grants, the evidence of which, though not thus filed, may be found of record on the public records of such grants evidently requiring the evidence of all incomplete grants to be filed and placed, for the consideration of the board, before them. This old board did not grant — had no power to grant; they decided whose grants or concessions heretofore made by the French or Spanish authorities, ought .to be confirmed, and their decision was good and valid against the United States. They did not therefore grant the land in the present case, but decided that Condé’s representatives were entitled to it. That is the effect of their decision in whatever language couched. This board were empowered to decide upon the claims. They could determine to whom the grant, which had heretofore been made, was to be confirmed, and in this ease, they do determine. Lemonde says: “ I claim the land, formerly the property of Mr. Condé.” The board say: We grant the land to Condó’s representatives.” Now, unless Lemonde shows by evidence, by ■conveyances, or by other facts, that he is such representative, the grant can not enure by its terms to his benefit. The board did not, by the -use of the terms representatives of Condo, intend to be understood as deciding more than that the grant was good, and by their decision divested the United States of their title. The grant heretofore made to Auguste Condé is good j and they now decide that it should be confirmed to his legal representatives, which decision makes it a good and valid grant against the United States, in favor of Conde’s legal representatives, and thereby the United States became divested of the title. But the board did not say, and would not say to Lemonde, “ we confirm the grant to you, as assignee of Oondé.” The board manifestly left the question, as to who were the legal representatives of Condó, open, to be hereafter settled by other authority. The board was not willing, without evidence of transfers before them, to grant or confirm to the' person who barely filed the notice, and exhibited no evidences of title before them. Therefore, there is meaning in the phrase, “ the board grant the one by forty arpens of land to the legal representatives of Auguste Condé.” If Lemonde can show himself to be Such representative by other evidence of title in writing, or by any fact, that he is such representative, then the confirmation or grant, as the board call it, is to him or for him. But, unless he can, then it is to the legal representatives of Condé, and not to Lemonde. In all the cases before the Supreme Court of the United States, in which they have held or intimated that the confirmation was to him who'filed the claim, there was evidence of the intermediate transfers or deeds or conveyances from the original grantee to the claimant. The claimant shows- that he ' is the assignee, or the real or supposed owner, by his evidences of title, and the confirmation is, in effect, to him. Because the person in whose name the original grant was made having parted with his interest in the land to the person who files the claim and gives the notice, can not be said to be a claimant; nor has he any grant to be confirmed. The .person claiming shows this ; he files his written evidences of claim before the register or recorder ; the board can see that the original grantee has parted with his right; has neither land nor claim, nor can he be a claimant.

Tillier, in the case of Bissell v. Penrose, filed the claim in the office of the recorder ; prosecuted it before the board of commissioners. He'represented the interest of one of the sons of Vasquez, in quantity eight hundred arpens. There were four sons, each one entitled to the same quantity. Tillier procured the private survey of his share, and filed his separate claim for that amount, together with the conveyance from the original grantee. Under these circumstances, it was insisted that the confirmation was to the son and not to Tillier. The Supreme Court remarked: “It was difficult to perceive what right or claim the son had, either before the commissioners or congress, to be confirmed. Having parted with all his interest, he had neither land nor claim, nor was he a claimant, as that term is regarded as applicable to those only in whose name the claim was filed with the recorder, under the act of 1805.” That is, in accordance with the act, filing all the written evidences of transfers and other deeds and conveyances. Here Tillier was regarded as the confirmee ; he had filed the written evidences of his claim before the recorder. These evidences showed that young Vasquez had no claim, but that Tillier had.

Not like this case, Lemondé files no evidence of derivative title — 'Shows no right to the land — simply claims it without any evidence. The board confirmed the grant to Conde’s representatives. Now I do not see how this confirmation, by its terms, can enure to Lemonde from what is exhibited in thig' case. In Stoddard v. Chambers, there were intermediate conveyances from Bell to Mackay, and from Mackay to Stoddard. I find no ease where that court has decided that the bare giving of the notice, without any evidence of title, or any written evidences from the original grantee to him who gives the notice, would make the confirmation to the original grantee enure to him who gave such notice. In all the cases that have come under my observation, where this doctrine has been laid down, there were evidences of transfer from the original grantee to the claimant who gave the notice and presented the claim.

In the case of Boone v. Moore, (14 Mo. 420,) there were intermediate transfers and conveyances, showing the title had passed from David Cole to Mackay, and from Mackay to Richardson. These written evidences before the recorder showed that neither Cole nor Mackay had any land to be confirmed. They were not and could not be claimants. Richardson had obtained the land as granted to Cole from Mackay, who had personally obtained it from Cole. He was the claimant, and although the confirmation was to David Cole, or his legal representatives, yet it might well come to Richardson, for he showed that he had the title of David Cole, by his written evidences before the board. True, the judge, in delivering the opinion, rejects as immaterial all these intermediate conveyances, and holds that, under the decisions of the Supreme Court of the United States, Richardson had the title confirmed to him ; it was in him, and not in Cole or his representatives, he being the person who filed the claim before the recorder. Yet, as that Supreme Court has never pronounced this doctrine in any other cases than such as manifestly showed by the evidences filed before the recorder, that the claimant was the then owner of what had heretofore been granted to another, I feel unwilling to extend the doctrine to the length it was carried in this case of Boone v. Moore, because there was no necessity of going that far in that case. The record showed the case was within the principle of Bissell v. Penrose, and might have been settled by it if the question of evidence had been determined ; and to get clear of this question, the case went a step in advance of the doctrine of the Supreme Court, or rather applied that doctrine to a case not within the range of the cases where it had been first promulgated.

I forbear to notice the other points, further than to say that we do not consider the deed from Lemonde’s heirs to the plaintiff void for uncertainty.

The court should have instructed the jury, as requested by defendant, £-£ that, from the plaintiff’s showing, he could not recover in the present action.” Its judgment is reversed, and the cause remanded;

the other judges concurring.


text:
    Mercier et al., Respondents, vs. Letcher et al., Appellants.
    1. C. M. having a Spanish concession and survey, died in 1802, leaving five children, and a widow, who afterwards married one J. M. O. J. M. C. claiming to be the representative of C. M., (whose widow, he stated in the notice of claim presented by him, he had married,) presented the claim for confirmation to the old board of commissioners; but made no proof whatever of any derivation of title from C. M. to himself. The hoard, October 9, 1810, confirmed the claim to C. M. Held, that this confirmation was not void, hut enured to the benefit of the representatives of C. M. It did not enure to the benefit of J. M. C. (Hogan v. Page, ante, affirmed.)

      Lppeal from St. Louis Land Court.

      S. Reber, for appellants.
    1. The confirmation to Charles Mercier is void, because he was dead before the claim was presented to the recorder. An entry in the name of a dead man is void. (6 Pet. 261; 3 A. K. Marsh. 1080; 4 Pet. 345.) So also a patent. (12 Pet. 297-8 ; 1 Mo. 540 ; 4 Bibb, 385; 10 How. 373.) 2. If the confirmation be held to be a confirmation to the representatives of Charles Mercier, then it is a confirmation to Jean Marie Courtois, he having claimed the land by virtue of his marriage with the widow of Mercier, and filed the claim before the recorder. 3. The partition proceedings under which the plaintiffs claim are void. (Jackson v. Brown, 3 Johns. 459.)

      B. A. Hill, for respondents.
   Ryland, Judge,

delivered the opinion of the court.

This was an action in the nature of ejectment, to recover possession of a common field lot in the common field of St. Ferdinand. The plaintiffs claimed title under Charles Mercier, deceased, in whose name the land was (claimed to be) confirmed by the old board, and surveyed.

The deceased, Charles Mercier, died''in 1802, leaving a widow, who married Jean Marie Courtois, in the same year, and five children, Charles Mercier, one of the plaintiffs, and four daughters.

Jean Marie Courtois, claiming a larger, tract, of which the land in controversy was part, as the representative of the deceased Mercier, whose widow (he said in his claim) he had married, gave notice of his claim to the recorder of land titles, and filed with the notice the Spanish survey of the land which had been made for Mercier. The papers were duly recorded by the recorder in the boohs of his office.

On the 19th of August, 1806, the board acted bn the claim of “ The representatives of Charles Mercier” — received proof of cultivation of the land claimed, and rejected it. The said proceedings of the board were recorded in book No. 1, p. 477. On the 9th of October, 1810, the board took up the claim again, and referring to the said book No. 1, p. 477, confirmed it to “ Charles Mercier,” and on the same day the board issued a patent certificate in the name of .Charles Mercier.”

All the daughters of Mercier married between the years 1810 and 1818, and were under the disability of coverture until within less than twenty years before suit was brought.

In 1848, the said five children of Mercier instituted proceedings in the St. Louis Circuit Court, for partition of the land, and the part in controversy was sold in that proceeding and conveyed to the plaintiffs in 1850.

In 1805, Jean Marie Courtois and wife (former widow of Mercier) conveyed the land in controversy, with general warranty to Richard Sappington, and defendants have Sapping-ton’s title.

In 1824, Mercier, the plaintiff, conveyed his interest in the land to Jean Marie Courtois, and defendants have also that title. The defendants and those under whom they claim have been in continuous and adverse possession of the land since the year 1814.

The court, sitting as a jury, found the facts as above stated, and gave judgment in favor of the plaintiffs for four-fifths of the land. The defendants filed their motion for a review, which being overruled, they bring the cause to this court by appeal.

From this statement, it appears that some of the questions arising on this record are the same as those which have just been decided by this court in the case of Hogan v. Page. The-original grant was to Charles Mercier. At the time of the confirmation, he had been dead for several years. Courtois, who married the widow of Charles Mercier, delivered to the recorder of land titles for the territory of Louisiana, a notice in writing as follows, to-wit: “Jean Marie- Courtois, representative of Charles Mercier, whose widow he has married, claimed a tract of ---arpens of land on the right or south bank of the Missouri, surveyed for said Mercier, as per the following certificate.” Courtois delivered with the notice a plat and survey of the said land, made by Antoine Soulard, for the said Mercier, on the 5th March, 1797, by authority of a letter from the lieutenant governor, Zenon Trudeau. This notice and survey was recorded by the recorder of land titles, in a book kept for that purpose. C. Mercier died 28th June, 1802, leaving a widow and five children — four daughters and a son — bearing his father’s name. At first, the board rejected the claim. Subsequently, on the 9th October, 1810, the following further proceedings were had before the said board: “Certificate No. 496, Charles Mercier claiming 208 acres and 48-100ths of an acre of land, (see book No. 1, p. 477,) produces to the board a plat of survey of St. Ferdinand fields, on which claimant is No. 25. The board confirm to Charles Mercier 20'8 48-100ths acres, as described in a plat of survey executed by Silas Bent, principal deputy, and dated 28th November, 1809, on file with the recorder.” And on the 9th October, 1809, said board of commissioners issued certificate No. 496, as follows : “ We, the undersigned commissioners for ascertaining and adjusting the titles and claims to land in the territory of Louisiana, have decided that Charles Mercier, original claimant, is entitled to a patent under the provisions of the 4th section of an act of congress, passed 3d of March, 1807, for 208 acres 48-100ths of land, situated in the district of St. Louis, St. Ferdinand fields, as described,” &c.

This confirmation, according to the opinion of this court, did not enure to Courtois, He had married the widow of the original grantee, and thereby claimed as his representative. He produced no evidence of title from Mercier. The board did riot make this confirmation to the legal representatives of Charles Mercier by express terms, but confirmed the grant to Mercier himself. The board knew that Mercier was dead. Curtois had informed them that he claimed the land as representative of said Mercier, because he had married his widow. They well knew that this did not make him the legal representative of Mercier. They refused to recognize Courtois as such, and confirmed the gra'rit to Charles Mercier. This confirmation can not enure, under our view of the law, to Courtois. He filed no evidence of title — no intermediate conveyances from the original grantee. His marriage of the widow gave him no right to the land.

The question now arises, is this confirmation valid? Has it any legal operation ? If we apply to it the rules of construction which common law lawyers use in construing grants at common law, we shall at once pronounce it invalid. But when we look at the powers and duties of the coinmissioners, the object of their creation, the causes which required such a tribunal, and the matters which were necessarily to come before them for decision, we unhesitatingly pronounce the confirmation good and valid in law. What is it that is confirmed ? It is the original right or grant which had been made by the Spanish authorities to Charles Mercier. The board of commissioners did not make grants — they had no power to grant. They were to decide upon grants heretofore made by the French and Spanish authorities, and when they decide and confirm the grant, they confirm the original grant as it was made. They say this grant to Charles Mercier is confirmed. They thereby decide that then, that is, on the 9th October, 1810, this grant is a valid title against the United States ; they by their confirmation in effect declare, at the time it is pronounced, that the grant to Charles Mercier is a valid and subsisting title against the United States. If this be the effect of their decision, and that it is there is scarcely a doubt, then, as it declares the grant good as against the United States, it must, by operation of law, be good in favor of those who have by law the right to claim it under Charles Mercier, either as grantees, devisees or heirs. In this case there are no persons claiming under this grant from Mercier except his heirs, and they are entitled to it. Courtois has no right, nor has his widow. The right then being in the heirs of Mercier; they had the power to have the property divided among them by partition, and a sale upon the proceedings for partition among the heirs of Mercier is good and sufficient to pass the title to the purchaser at such sale of all the heirs who were parties to the proceedings.

The effect of the deed of Charles Mercier, the son, to Courtois in 1824, was to pass to him his title as one of the heirs. Upon the whole case, we think the court below decided correctly, and its judgment is affirmed;

the other judges concurring.


author: Ryland, Judge, Leonard, J.

text:
    Menkens, Appellant, v. Ovenhouse, Respondent.

      t. Where in an action for the possession of land, the defence relied on is the statute of limitations, and the court finds that in the year 18X8, one B., under whom defendant claimed, took possession of the tract sued for, under a deed of conveyance of the same, and let it out to various tenants at various times after the date of the purchase, until his death; that at all times since his purchase, B., and since his death his representatives have claimed the said land and exercised ownership over it, by entering upon it, by cutting timber and wood upon it, by prosecuting others for trespasses to the land, and by constantly having an agent living near the land with authority to superintend and protect it, and rent it out, and by regularly paying the taxes ; that these successive possessions were actual, continuous, and adverse to the plaintiff and those under whom he claimed; held, that these facts found by the court warranted a judgment for defendant,- notwithstanding it was also found that the land sued for was not used as a homestead or dwelling, and that during B.’s claim the land was often uritenanted and uncultivated, sometimes for several years at a time ; that at such times the fences were thrown down or destroyed, and the land lay open. (Scott, J., dissenting.)

      Appeal from St. Louis Land Court.

    Casselberry, for appellant.
    1. There was no sufficient adverse possession. There should be an actual, hostile, distinct, visible and notorious corporeal occupation of the land during the whole of the time the statute has to run. (5 Cow. 219 ; 2 Johns. 230; 2 N. & McC, 343 ; 1 Ríce, 10 ; 1 Mete. 528 ; 10 Johns. 477; 4 Mass. 416 ; 2 Aik. 364; 4 Bibb, 544 ; 1 Marsh. 59, 506 ; 5 Litt. 22 ; 6 S. & R. 21; 11 Gill & Jo. 371.) 2. The payment of taxes alone, though it may extend the limits of a possession, does not constitute it, and there must accompany it an actual occupancy of at least a part of the land. (10 Watts, 142 ; 4 Whart. 293.)
    Gantt, for respondent.
    1. The fact that the land was sometimes untenanted, and the fences occasionally thrown down, will not prevent the running of the statute of limitation. (17 S. & R. 104; 10 id. 303 ; 7 Watts, 35; 3 id. .69 ; 11 Pet. O. O. 41; 10 Pet. 442.)
   Ryland, Judge,

delivered the opinion of the court.

The only question in this case is,'will the finding of the facts by the court sustain the judgment rendered thereon ? There is no evidence preserved on the record, no motion to review the finding of the facts by the court, and nothing for this court to consider but the finding of the facts and the judgment thereon.

The facts found are as follows : “A tract of land, whereof the land in controversy is part, was conceded by the lieutenant governor Piernas to Clement Delor de Traget, in 1771, and was confirmed to his representatives (npt naming them) by the act of congress of 29th April, 1816. Pierre Marie (under whom plaintiff claims) was one of the grandsons of said Delor, being’ a son of one of his daughters by his first marriage. Pierre Marie’s mother, Rosette by name, was married to Alexis Marie, by whom she had three sons, all of whom are dead. The first two, Alexis and Gregoire, died respectively in 1886 and 1849, and Pierre died this year, in the summer. Clement Delor de Traget died before the change of government, and both Alexis and Rosette Marie died before 1822. Clement Delor de Traget had ten children, sons and daughters, five by the first marriage and five by the second. Two of the sons by the first marriage died unmarried and without issue. C. Delor de Traget had a written contract of marriage with his second wife, purporting to establish a community of goods, according to the laws of Castile, and importing that he had made a like contract with his first wife. On the 20th October, 1851, Pierre Marie conveyed to the plaintiff all his right to the land, by a quit claim deed, for the consideration of two dollars. The annual value of said land is three dollars per acre. There was testimony tending to prove that before the year 1814, and after the change of government, persons other than the descendants and heirs of said Clement Delor, and among them one Glenn possessed and cultivated the land in question. On the 7th March, 1814, persons claiming to be legal representatives of Glenn conveyed the said land by deed to one Michael Tesson, called Honoré, arid said Honoré entered upon the land under that conveyance, and possessed and cultivated the same. On the 24th of February, 1817, said Honoré, by deed, conveyed the said land to one Joseph Presse, who entered upon it under that conveyance, and possessed and cultivated the same. On the 19th March, 1818, said Presse, by deed, conveyed the said land to Bartholomy Berthold, who entered upon it under that conveyanee, and possessed the same, and let it out to various tenants, at different times, from the date of his purchase, in 1818, till his death ; some of Avhich' tenants cultivated the land, and others used it as a race bourse and place of amusement.

After the death of said Berthold, his legal representatives had possession of said land, and 'the present defendant is their tenant: At all times, since the purchase of said land by said Berthold, he in his lifetime, and his representatives since his death, have claimed the said land and exercised ownership over it, by entering upon it, by cutting timber and Avood upon it, and prosecuting others, and by constantly having an agent living near the land, with authority to superintend and protect it, and rent it’out, and by regularly paying the taxes. The land was in the common field of Carondelet, and was not used as a homestead or dwelling place. During the time of Berthold’s claim, the land was often untenanted and uncultivated; sometimes for several years at a time. At such times, the fences Avere thrown down or destroyed, and the land lay open. The land was in possession of said Honoré from the time of his purchase thereof, in 1814, until he conveyed it to Presse, as above stated. It was then in Presse’s possession until he conveyed it to Berthold, as above stated. It was in Berthold’s possession until his death, and ever since his death it has been and now is in the possession of his legal representatives.,

And those successive possessions .were actual, continuous, and adverse to the plaintiff and those under whom he claims. The conclusion of law upon these facts is, that the plaintiff ought not to recover in this action. All the issues arising on the pleadings, the court finds for the defendant.”

How upon this finding, I am of the opinion that the judgment is warranted, and that it should be affirmed. Here has been a long possession — from 1814, forty years — a possession prior to the existence of the statute of limitations in the territory, now state of Missouri. But let it begin from 1818 : u On the 19th March, 1818, Presse, by deed, conveyed the land to Bartholemy Berthold, who entered upon it under that conveyance, and possessed the same and let it out to various tenants, at different times, from the date of his purchase until his death ; some of which tenants cultivated the land, and others used it as a race course and place of amusement.”

The land was not used as a homestead. The lower court expressly finds that the successive possessions of Honoré, Presse and Berthold, were “ actual, continuous, and adverse to the plaintiff and those under whom he claims.” The only possible ground on which any doubt can arise as to this possession, is in what is stated by the court, “ that during the time of Berthold’s claim, the land was often untenanted and uncultivated ; sometimes for several years at a time. At such times, the fences were thrown down or destroyed, and the land lay open.” There was no dwelling-house on the land; but Berthold and his representatives constantly paid taxes on the land — always had an agent looking after it and keeping off' trespassers. They prosecuted others for trespasses committed on the land, and were exercising ownership over it by entering upon it and by cutting timber and wood up'on it. Now I do not feel at liberty to hunt out possible objections to the finding of the facts. I am inclined to think the lower court, before which the testimony was given, is better prepared to feel the force of such evidence and to state the general facts proved, and to give the proper judgment thereon, than I may be, by barely looking over his statements of such facts. I must trust to his judgment somewhat, and when I find facts amply sufficient stated, as found by him, though he may state at the same time other facts also as found, which tend to cast some doubt over a petition of his finding, yet, if the entire finding will support his judgment, I will let it remain undisturbed. When the facts found do not warrant the judgment, I will reverse. In this case, I think the facts found do warrant the judgment.

“ An entry by one man on the land of another, is an ouster of the legal possession, arising from the title or not, according to the intention with which it is done; if made otherwise, it is a mere trespass ; in legal language, the intention guides the entry and fixes its character. It is well settled that, to constitute an adverse possession, there need not be a fence, building or other improvement. It suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy, after an entry under claim and color of title. So much depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule adapted to all cases. But it may with safety be said that, where acts of ownership have been done upon the land, which, from their nature, indicate a notorious claim of-property in it, and are continued for twe-nty years, with knowledge of an adverse claimant, without interruption or adverse entry by him for twenty years,'such acts are evidence of an "ouster of a former owner, and an actual adverse possession against him. Neither actual occupation, cultivation or residence are necessary to constitute actual possession, when the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts or ownership, such as he would exercise over property which he claimed' in his own right, and would not exercise over property which he did not claim.” (Ewing v. Burnet, 11 Peters, 52; 6 Peters, 513; 10 Peters, 442.) Now the authorities are ample in support of the doctrine that an intruder or squatter, by entering on land, gets in law possession only so far as his immediate occupation extends, and it may be said to last no longer than his actual occupation continues. But not so with him who enters, claiming title, or under color of title. Chief Justice Gibson defines color of title thus : “ I would say that an entry is, by color of title, when it is made under a bona fide and not a pretended claim to a title existing in another. ” Chief Justice Gibson, in McCall v. Neely, 3 Watts, 73, speaking of the payment of taxes, says : “ It was said by Chief Justice Tilghman, in the case of Roger v. Benlow, and reported by Mr. Justice Rogers, in Read v. Goodyear, 17 Serg. & Raw. 350, ‘that payment of the taxes raises a presumption of ouster from the whole tract, and that the acquiescence of the owner is tantamount to an acknowledgment of such ouster. These dicta, though not conclusive, are entitled to a preponderating weight, as well for the respect we feel for the quarter whence they come as for their intrinsic good sense.’” (Heiser v. Riehle, 7 Watts, 35.) “The statute of limitations is a statute of repose, which is entitled to. a fair and liberal construction.” “ The man who enters into a tract of land, with title, has immediately, by construction of law, the actual possession of the whole tract. But he who enters without title, is a trespasser, and has no constructive possession, but is limited to the spot actually occupied. These are the general principles which govern the law of entry and possession. But there may be cases in which a jury might well presume an actual ouster, although the person who had' the right was not excluded by actual enclosure or cultivation.” (10 Serg. & Rawle, 306; 17 Serg. & Rawle, 109.) The case of Williams v. Dougan, reported in 20 Mo. Rep. 186, covers the main features of this case, and I think must settle it. 'In the case cited by plaintiff, of Doe v. Campbell, (10 Johns.) there was no regular deduction of title or privity and continuity of possession shown and deduced down from Smith to Elliot, or to any of the other defendants. To constitute a disseizin of the owner of uncultivated lands, by entry and occupation, of a party not claiming title to the land, the occupation must be of that nature and notoriety that the owner may be presumed to know that there is a possession of the land adverse to his title, otherwise a man may be disseized without his knowledge, and the statute of limitations may run against him, while he has no ground to believe that his seizin has been interrupted. (4 Mass. 416.) In Sorber v. Willing, (10 Watts, 142,) it was said: “Payment of taxes alone, though it may extend the limits of an adverse possession, does not constitute it.”- From a general review of many of the cases reported in the books, though there is some difference between . ‘them, yet there may be gleaned from them the principles embraced in this opinion. There is a difference in regard to the possession of the mere trespasser and' of him who enters claiming title.

Now the defendants here are in possession under a claim of title — a deed from Presse, in 1818, to Berthold, and a possession by him under that deed. His cultivation and occupation were only interrupted for a few years, when the fences were broken down. He all the time exercised acts of ownership by entering upon it, cutting down timber, prosecuting for trespasses committed on it by others, and paying continually the taxes — having an agent continually in the neighborhood to guard it from the trespasses of others, and to manage and attend to it.

If any people .need repose from litigation in regard to land titles, it is the people of this county and city ; and if the statute of limitations is entitled to the praise bestowed on it by Justice Rogers, of Pennsylvania, that it is a statute of repose, I am willing to give it a fair and liberal operation here, where it is so much needed.

I am therefore for affirming the judgment below. Judge Leonard concurs in affirming the judgment, but not in all the propositions laid down in the opinion.

Leonard, J.

I concur in affirming this judgment, without, however, concurring altogether in the grounds and reasonings of Judge Ryland’s opinion.

Scott, J., dissents.


text:
    Tibeau, Respondent, v. Tibeau, Appellant.
    i. The supreme court will not reverse a judgment on the ground that the court has not permitted a party to have the opening and the closing of the case to the jury, unless such refusal has produced a wrong to the party.

      2. An understanding between vendor and vendee, entered into at the time oí sale of land, (being a parol sale under wh-ieh possession is taken.) that i# within a year the former should repay to the latter the purchase money, with interest, then the latter would reconvey to the- former, constitutes the transaction a mortgage.

      Appeal from, St. Louis Circuit Court.

    For the report of this case, when on error before, see 19 Mo. 78. In addition to the evidence offered at the former trial, the plaintiff introduced evidence tending to prove a tender of the mortgage money. At the close of the plaintiff’s case, the defendant asked the following instruction: “ 1. The jury are instructed that the plaintiff can not recover;” which the court refused, and defendant excepted. Defendant then gave evidence tending to show a parol sale by plaintiff to defendant, and possession taken under' the same. The defendant asked the following instructions : “2. The jury are instructed that if plaintiff' re-sold the land to defendant, and possession of the land was by plaintiff, through Louis Tibeau, surrendered to defendant, then, as there is no question that the consideration was paid, the jury must find for the defendant.” “3. The jury are instructed that by the pleadings it is admitted that the sum of one hundred and thirty dollars was paid by defendant for plaintiff, and the only issue to be tried by the jury, is whether this sum, so paid, was the consideration of a mortgage or of a re-sale of the land by plaintiff to defendant.” “4. The jury are instructed that if plaintiff sold the land to defendant, with intent to cover up the property j and hide or conceal the same from his creditors, then plaintiff can not recover, and the jury must find for the defendant.” “5. It is admitted by the pleadings that one hundred and thirty dollars were paid to or on account of plaintiff by defendant. ” These instructions were refused by the court, and, on its own motion, the court gave the following : “1. [This instruction is set forth in the opinion of the court.] “2. It is admitted by the plaintiff in his petition that in 1839, he owed defendant $130.” At the request of plaintiff, the court gave the following instruction:
      <c 3. If the jury find for the plaintiff, they will find the value of the rent of the premises from the year 1849 to the present time.” The defendant duly excepted to the giving and refusing of the above instructions.. The jury returned a verdict for the plaintiff, and assessed the monthly value at ten dollars. The court, by its own decree, vested the title to the land in the plaintiff, subject to a lien in favor of the defendant for the balance due him.

      A. J. P. Garesché, for appellant.
    Reber, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This case was heretofore in this court, and is reported in 19 Mo. 78. The judgment below was then reversed, and the cause remanded. The present record presents very much the same state of facts ; it will not be necessary therefore to make a lengthy statement of the facts now before us, but to refer to the reported case. The plaintiff below again obtained judgment against the defendant, who moved to set the same aside, and for a new trial, which being overruled, he brings the case here by appeal.

In this court, the defendant contends for a reversal of the judgment, because the court below improperly and illegally refused to permit the defendant’s counsel to have the opening and the concluding of the case before the jury. And because proper instructions were asked by the defendant and refused by the court, and improper instructions were given by the court.

1. As to the first ground of complaint, we say that is not well taken. This is a matter depending on the practice and discre.tion of the circuit or inferior court. In an argument to a jury, the reply may or may not have had an influence on the verdict. If the verdict is such a one as could not have been rendered otherwise, on the law and the evidence of the case, the court below would not have granted a new trial, although the right to conclude had been denied to him who held the affirmative, and against whom the verdict was rendered; nor would this court reverse a judgment for such a cause. ” (Wade v. Scott, 7 Mo. 514 ; 1 Greenl. Ev. § 75 and 76.) The exercise of the discretion of the inferior courts .in this matter must produce wrong to the party in the cause, before this court will pretend to revise it.

2. In regard to the instructions refused on the part of the defendant, we also think that there is 'no well founded ohjection. The answer of the defendant shows that the transaction in re-gard to the land in controversy between himself and his brother, the plaintiff, may well he considered in the light of a mortgage. The plaintiff contends it was a mortgage ; the defendant, that it was a sale. Now these two brothers might have' different views in regard to this matter. The contract or the agreement might be in law a mortgage, although the defendant did not think so when he was making it.

The court instructed the jury that the defendant claims the land in controversy under a parol contract, which he alleges he made with the plaintiff, with the payment of the purchase money and delivery of possession under it. To sustain the defence, it should appear from the evidence that there was a contract for the sale of the land, as alleged, and what the consideration was, and that it was paid by defendant, and that the possession of the land was delivered or given up to the defendant in pursuance of it; if all this is proven to the satisfaction of the jury, they will find a verdict for the defendant, otherwise the defence of a parol purchase is not made out. ” This instruction put the defence, as regards the contract, fairly before the jury. The defendant entered the land with the money of his father, at his father’s direction; he had made to the plaintiff a deed for the twenty acres in controversy. Now the destruction of this deed, as heretofore laid down in this case by this court, did not reinvest the title to the land in the plaintiff. To get this title hack, must be by contract. The defendant sets up this contract. It is not pretended to be in writing, and the court properly states to the jury, under the above instruction, what the defendant has to make out by his proof.

This instruction embraced the merits of the defence, and the jury found for the plaintiff. The defendant in his answer states “that at the period of his repurchase, he told plaintiff that, if within a year he could repay to the defendant the amount of purchase money and interest, he would reconvey to him.” This in effect makes this transaction a mortgage, and the subsequent statement of the defendant, “ that, because this period has long since elapsed, because it was a promise made after the purchase, and without consideration, he should not now be compelled to observe it, and that the same is not binding,” can not render it less a mortgage. At the period of his repurchase he told the plaintiff that, if within a year he could repay to the defendant the amount of the purchase money and interest, he would reconvey to him. We must remember that all this matter about repurchase is in parol, that is, not in writing. Then being done at the same period — same time, whether at the end or beginning of the contract, it must be considered as forming a part of it. It must be considered as forming but one contract or agreement, and the legal effect of that is to make the whole a mortgage — a different thing altogether from what the defendant’s counsel contends it was. The jury having found for the plaintiff upon an instruction putting the law of the case fairly before them, we ean not say that they have been misled.

In regard to the point about the rent, it may only be thought necessary to say that the mortgage debt and interest have been decreed to be paid to the defendant. • Now the value of the profits and rents of the premises, in equity and good conscience, should be deducted from the debt and interest. The court directed the jury very properly to estimate the yearly value from a certain period before the possession and up to the beginning of the suit, including the time _ the defendant was in such possession; not for the purpose of deducting the rent for such time, but in order to ascertain the yearly value correctly, that he, from such estimate, might fairly allow for the time during whicli the defendant had possession according to the yearly value found by the jury ; and hence in this case the damages or value of the rents and profits are charged against the defendant only for the time he had the premises in his possession.

Upon the whole case, this court is of opinion that the judgment of the court below should be affirmed, which,

with the concurrence of the other judges, is done accordingly.