Cottle v. Sydnor

Napton, J., delivered the opinion of the Court. This was an action of ejectment instituted by Cottle in tbe Circuit Court of Lincoln county, to recover possession of a small tract of land alleged to be within tho limits of a Spanish survey. The original concession was made by Lieutenant Governor Delassus on the 20th Septem- . her, 1799, and was surveyed by James McKay on the 23rd December, 1803, and certified by him on the 20th January, 1804. The claim before the board of commissioners was for 350 arpens, situate on the waters of the river Cuivre, in the district of St. Charles. In July, 1803, the board granted the said claimant 350 arpens, situate as aforesaid, provided so much be found vacant there- In September, 1810, the board confirmed to Andrew Cottle three hundred and fifty arpens as described in the plat of survey certified 20th January, 1804. In 1816 or 1817, the lands in this part of the country were surveyed and sectionized by the United States surveyors, and in 1819 or ’20, they were brought into market.— in making these surveys, the United States surveyors cut off from Cottle’s tract, as it was originally surveyed by McKay, a strip on the west-side about six chains in width, and containing altogether near one hundred acres, leaving in the tract, however, still upwards of 350 arpens.— The controversy is in relation to the southern corner of this strip, containing about fourteen acres, upon which are located the dwelling houses and other improvements of the defendant. The plaintiff, for the purpose of establishing his title, introduced the confirmation of 1806 and of 1810, the survey by McKay in 1803, and a -survey by the county surveyor founded upon the original Spanish survey, together with the oral testimony of this county surveyor and the chain carriers, to establish the correctness of the survey and its conformity to the original Spanish survey. The defendant relied on a patent from the United States for a quarter section, in which the tract in controversy is included, to Jesse Perkins,I assignee of James McWilliams, issued in 1826, and a derivative tit!el [767] from said Perkins to himself. He also relied on an adverse possession of more than twenty years in himself and those from whom he purchased. He also relied on two deeds made by the plaintiff, the one to Thomas Sydnor, executed in 1837, and the other to Simon Creech in 1828. In these deeds, the plaintiff, in conveying portions of his Spanish grant, as surveyed by the United States, recognized the corners of his tract as they had been designated in the United States survey. In relation to the testimony concerning an adverse possession, there was some diversity among the witnesses as to the precise locality of Waggoner’s improvements In 1819 or 1820, but there was evidence to show that Waggoner, from whom the defendant derived title, claimed the whole quarter section, upon a part of which he had made improvements. This quarter section included the land in controversy. The plaintiff had been in pos-, session of his Spanish claim for forty years. We do not give the details of the evidence, since the only question we are called upon to decide arises out of the instructions, and sufficient has been stated to show their applicability to the questions of fact submitted to the jury. The instructions given on the trial were as follows: 1. In this case, the plaintiff, if he récover at all, must recover on the strength of his own title, and not on the weakness of the defendant’s title. 2. If the jury believe from the evidence that Palmer, the county surveyor in making the plat and survey of the tract of land granted to Andrew Cottle and given in evidence in this cause, did not find any corner tree, corner stone, line tree or mark, or bearing tree mentioned or described in the Spanish survey, according to which it purports to have been made, and that said surveyor only found the beginning corner of his said survey by finding the intersection of two old lines which were shown to him by Cottle, the plaintiff, and that he only knew them to be lines of said survey from the information derived from said Cottle, that under such circumstances, said survey made by said Palmer does not furnish any legal evidence that the land contained within said survey is the land confirmed to said Andrew Cottle. 3. If the jury believe from the evidence-that the premises in controversy are part of the land granted by the patent to Jesse Perkins, which has been given in evidence in this cause, and that said defendant, Sydnor, holds by regular chain of title to the same under said Perkins, that then the.jury must find for the defendant. 4. If the jury believe from the evidence that the tract of land granted to said Andrew Cottle was surveyed by authority of the United States, [768] in such manner as to gire him three hundred and fifty arpens, the quantity named in his original grant, and that the adjacent surplus land on the west not included in said survey thus made was surveyed in the year 1816 or 1817, and sold as public land of the United States, that the premises in controversy were a part of said surplus land thus surveyed and sold, that a patent in due form was issued by the United States in favor of Jesse Perkins for the quarter section including said premises, and that the defendant holds title by a regular chain of conveyances from said Perkins, in that case the jury must find a verdict for the defendant. 5. If the jury believe from the evidence that for the period of twenty years next preceding the time of the commencement of this suit, John W. Sydnor, the defendant, and the persons under whom he claims title, had the actual possession of a part of the quarter section in which the premises in controversy are situated, claiming the whole of said quarter section as their own, and during said twenty years exercised acts of ownership on said quarter section, then they must find a verdict for the defendant. 6. If the jury believe from the evidence that for the period of twenty years next preceding the time of,the commencement of this suit, John W. Sydnor, the defendant, and the persons under whom he claims title, had the actual continued possession of a part of the premises in controversy, and cultivated the same as their own, and claiming'the whole quarter section in which the same are situated, then they must find for the defendant. 7. If the jury believe from the evidence that Andrew Cottle, the plaintiff, on the 13th day of April, A. D. 1837, by a deed executed to Thomas Sydnor, under the seal of said Cottle, declared the north-west corner of the tract of land thereby sold by him to Thomas Sydnor to be the northwest corner of the Spanish grant on .which he,-the said Cottle, then resided, and that said deed was duly recorded in Lincolh county on the 19th day of April, A. D. 1837, then said Cottle is estopped in law from contending in this action that the north-west corner of said Spanish grant is at a different place from that mentioned in said deed to Thomas Sydnor. 8. If the jury believe from the evidence that on the 27th day of December, in the year 1828, said Andrew Cottle executed a deed to Simon Creech, under the seal of him, the said Cottle, and in .said deed declared that the south-west corner of the land thereby sold to said Creech was the south-west corner of the land of said Cottle, and the north-west corner of said land sold to said Creech was in the west line of the tract [769] of land of said Cottle, and that said deed was duly recorded in Lincoln county on the 30th day of December, A. D. 1828, then said Cottle is es-topped from contending in this action that the south-western ■ corner of his said Spanish grant' and the western line of his said grant are in places different from those mentioned in said deed to Creech. 9. The document given in evidence by the plaintiff, and called a copy of a Spanish survey of Andrew Cottle’s grant, does not purport to be a copy of a Spanish survey, and is not certified to be such, there is no legal evidence before the jury that it is a copy of a Spanish survey, and therefore does not furnish any legal evidence to prove where Andrew Cottle’s land is situated. 10. If the survey made by Palmer, the county surveyor, as given in evidence by plaintiff in this cause, was based upon the document given in evidence by plaintiff and called a copy of a Spanish survey, and not upon a regular and correct copy of the Spanish survey of said grant, then the survey made by said Palmer is no legal evidence to prove where the land of said Cottle is actually situated. The third and fourth instructions assume that the patent, which issued in 1826, must prevail over the confirmation in 1810, and are therefore erroneous. Harrold and wife vs. Bailey, 9 Mo. R., 326. Nor do we concur with the position of the Circuit Court that the descriptions of the tracts conveyed by the deeds to Creech and ThomasSydnor, and the verbal declarations of Cottle, estopped him from claiming the true lines of his survey. We know of no principle which would authorize a stranger to avail himself of a mistake of this kind, or that would permit him to derive a benefit from an act done by the plaintiff under a misapprehension of his rights. So far as Creech and Thomas Sydnor are concerned, Cottle would not be allowed to deny what he has stated in his deeds relative to the corners of his tract. But the defendant in error is no party or privy to' those conveyances. In Jackson vs. Woodruff, (1 Cow., 276) A owned a patent and B an adjoining patent, and in the location under their respective patents, A, by mistake, curtailed his location on the side of B, in consequence of which, B claimed up to A’s location, and deeded a supposed gore between the patents. It was held that A was not concluded by giving conveyances of his land according to such mistaken location. The estoppel extended no fanther than to benefit those to whom the conveyances had been made. The question of adverse possession, upon which the court gave instructions, was not placed before the jury in a proper shape. It is true, as a general principle, that where a party enters a trac.t of land, claiming [770] the whole under a paper title, the possession is adverse as to the whole tract. But where the actual owner is in possession of a part of his tract, he has legal and constructive possession of the whole, and a disseizin can only be effected by an actual ouster. The legal seizin as to the unoccupied portion of the tract follows the legal title, and the pedis possessio alone creates an adverse title. Here the plaintiff, it seems, had been in possession of a portion of his Spanish claim for forty years, and this possession of part gave him constructive possession of the whole tract.— The only adverse possession which could give title under these circumstances would be an actual occupancy. His ignorance of the true location of his lines could not affect his title. Hall and others vs. Powell, 4 Serg. & R., 465; Barr vs. Gratz’s heirs, 4 Whea., 223; Ridgeley’s lessee vs. Ogle, 4 Har. & McH., 129; Hord vs. Bodley, 5 Litt., 88; Gray vs. Moffitt, 2 Bibb, 508; Green vs. Siter, 8 Cranch, 229. Judgment reversed and cause remanded.