McGill v. Somers

Gamble, J., delivered the opinion of the court. The plaintiff, McGill, claims the land in controversy, under a confirmation by the act of Congress of 29th April, 1816, to Francis Cottard, and a survey under the confirmation. The. defendant’s claim title under the location of a New Madrid certificate, in the name of James T. O’Carral, or fiis legal representatives. They also set up, as an outstanding title, a confirmation to Joachim Roy’s representatives, and a survey under it, conveying the land in controversy. The evidence to establish Roy’s title, consists of extracts from the minutes kept by the recorder of land titles when taking proof upder the act of Congress of the 2-6th May, 1824, and an extract from the list of claims proven before him, which was sent to the office of the surveyor general as required by the 'act. The defendants also exhibited the titles of Augusta Chouteau, of Joseph Motard and of the commons of the town of St. Louis.The surveys of these claims embraced nearly all the land surveyed under the Cottard confirmation, hut this suit is brought to recover land not included in either of the three last mentioned claims. Roy’s survey is the only one established by the defendant, except that of the New Madrid claim which includes the land in controversy. The defendants allege that Cottard’s survey is made at the wrong place, and use the claims that conflict with it, as evidence of its improper location. At the request of the defendants the court below gave the following instructions.! 1. if the fend sued for in this q.ction lies within the claim confirmed to Joachim Roy as said efeim is-shown by transcripts produced from recorder Hunt’s proceedings and’ list sent to the surveyor’s office, then there can be no recovery in this action. 2. That if the jury find from the.qvidenqe that the-Cottard claim and confirmation have been improperly Iqqated'’ and! surveyed, and, that if ^f’opérly located, it would not include the fend' in controversy in this suit, they wiffl find for the defendant. 3. That th© survey of the §t. Louis commons, given in evidence in — 84 — this case by defendants, is to be presumed to be correct, and to be the true boundary thereof, unless it is proved otherwise, and that if the Cottard claim is located so as chiefly to be within the land confirmed to the “inhabitants of the city as commons” then such location is an erroneous location. 4. That the survey of the Cottard claim given in evidence is not conclusive; but that the jury are to judge from all the circumstances, as to the propriety of such location; and if they believe from the evidence that it is located and surveyed in the wrong place, they will find for the defendant. 5. That the location and survey of the Joachim Roy claim, is presumed to be correct, until the contrary be shown; and the jury are bound to consider it a correct survey, unless its correctness be disproved. 6. If the common field lot confirmed to Cottard lies wholly within the survey of the Chouteau mill tract, as made by Brown or Paul, except so much of it as extends farther west than the west line of said mill tract, then there can be no recovery in this action. 7. If the jury believe from the evidence that the land of Motard, cultivated by him at Cul-de-Sac was a common field lot, and that the same was possessed and cultivated by him, under the Spanish government till he sold to Lee, and that Lee and Adams, or one of them, continued to cultivate and possess it, till after the change of government, the said land was confirmed to Motard or his representatives by the aot of the 13th June 1812, and the title thereof is older in point of time, and paramount to that of Cottard, if they conflict with each other. 8. If the jury find from the evidence that the common field lot claimed in Cottard’s name was passed and cultivated by Adams prior to 20th December, 1803 and that he was the last cultivator and possessor of the same before the change of government, then the act of 13th June 1812, confirmed the same to him, and the subsequent confirmation to Cottard by the recorder, is inoperative and passed no title. The plaintiff asked the court to give the following instructions, which the court refused: 1. The confirmation to Francis Cottard, given in evidence, and the survey and location given in evidence, under the authority of the United States, vested the land in controversy in the said Francis Cottard as against the title under which the defendant’s claim, unless the jury believe from the evidence in the case that the survey and location, given in evidence are entirely erroneous and that the land confirmed to Cottard is other and different from the land so surveyed and located. — 85 — 2. If the jury believe from the evidence, that a part of the land confirmed to Cottard is within the survey to Motard, or within the commons, or within botli as confirmed and surveyed under the several acts of congress, this will not entitle the defendants to a verdict in this case, if the jury believe the land in question, in this suit, is not embraced either in the Motard survey or survey of the commons. 3. The certificate and evidence, under which a survey has been made, to Joachim Roy is not a confirmation in the sense of a grant by the United States, and if it was, in case of any conflict between that and the confirmation to Francis Cottard, the latter will be preferred, being the older title; that is, the confirmation to Cottard, if the land has been correctly surveyed, as described in the official survey, is the better title. 4. In ascertaining the location of a grant, monuments and visable boundaries in the grants, and surveys will control courses and distances and when they disagree the line must be run according to the visible boundaries given, though it should disagree with the courses and distance as ascertained by the surveys made since the grant or deed. §. If the jury believe from the evidence, that the premises in question in this suit are not within the St. Louis commons as surveyed, and are not within the survey of the confirmation to Motard’s representatives, then, neither of these can be set áp by the defendants as outstanding titles to defeat the plaintiff’s recovery, claiming to be representatives of Cottard. 6. If the jury believe^from the evidence, that the concession to Cottard was duly executed, and that his will, given in evidence, was duly made and published, and that the deed from Etienne Roussin was duly executed to Albert Tison, and that said Albert Tison is dead, and the plaintiffs are his heirs.at law, and that the land confirmed to said Cottard by act of congress of 29th April, 1816, included the premises in question, they will find for the plaintiffs. 7. If the land conceded to Cottard was a common field lot, adjoining the common fields of the Cul-de-Sac, and the concession was duly executed at or about the time it purported to have been, and that the land in said concession was cultivated, inhabited and possessed by said Cottard prior to 20th December, 1803, then the same was confirmed by the act of congress of 13th June, 1812. 8. If the jury believe from the evidence that a part of the land confirmed to Cottard within the survey to Motard, within the commons or within both, as confirmed and surveyed under the several acts of congress, this will not entitle the defendants to a verdict in this case, if the court sitting as a jury, find that the survey and location to Cottard is — 86 — correctly made, under the confirmation to said Cottard, and that the land sued for is within said confirmation and survey and outside the survey of the commons and the claim of Motard. 9. Under the proof in this cause, the court sitting as a jury and finding the law and fact, is required to decide that the claim of Adams and the confirmation thereon is not a common field lot or out lot, within the meaning of the act of 13th June 1812. 10. The court, sitting as a jury, should find, that no claim having been made by Calvin Adams to the land confirmed to Cottard, and said Adams, and those claiming under, him, accepted a confirmation and survey excluding the land in controversy in this suit, and no claim having ever been made under said Adams, to those claiming under him to said land, then the title acquired by said Adams and given in evidence in this case, is not a bar to the recovery of the land claimed in this cause. The first instruction given by the court, makes the action of the recorder upon the claim of Roy’s representatives conclusive against the plaintiff as an outstanding and superior title. The act of 26th May, 1824, required the owners of town lots, out lots, and common field lots which had been confirmed by the first section of the act of 13th June, 1812, to appear before the recorder and prove the extent and boundaries of the lots so confirmed, the recorder was required to submit a list of the claims so proved, to the surveyor general, and another copy of the list to the general land office and to give a certificate of confirmation to the owner. The evidence in this case consisted of extracts from the recorder’s minutes and from the list sent to the surveyor. The certificate was not produced. The court did not leave to the jury the question of fact, whether the land in controversy was embraced in the tract confirmed to Roy by the act of 1812, but informed them “that if it was embraced in the claim confirmed, as shown by the transcripts produced from the recorder’s proceedings, and the list sent to the surveyor’s office, then the plaintiff cannot recover.” The effect thus given to the acts of the recorder, is to make them conclusive of all questions of title and locality under the act of 1812. A reference to the different cases decided by this court, will show that this instruction of the circuit court goes far beyond them, in the effect given to this evidence. The cases, from Janis vs. Gumo, 4 Mo. R., 458, to the present time, have maintained that the certificate of confirmation issued by the recorder under the act of 26th May 1824, is only prima facts evidence of a confirmation by the act of 13th June, 1812: Biehler vs. Coonce, 9 Mo. R., 347; Macklot vs. Dubreuil, 9 Mo. — 87 — R., 477; Boyce vs. Papin, 11 Mo. R., 16. In the case of Biehler vs. Coonce, the court expressed an opinion upon the admissibility of the ’extracts from the recorder’s books and gave to them the same effect as to a certificate issued to the party. The descriptive list sent to the -surveyor’s office, under the command of the act is evidence of as high a character as the certificate would be, and a properly authenticated extract from it, is entitled to all the effect that the original certificate would have. Still the instruction is erroneous, for it makes the evidence conclusive against a person claiming the same land by a confir¡mation under the act of 1816, and a survey under such confirmation. If Roy was entitled to the land by a confirmation under the first section of the act of 181-2, his’title is superior to the confirmation under which the plaintiff claims, but theplaintiffis entitled to dispute the fact that it was so confirmed to Roy. Several of the instructions given, involve the question, how far the surveys made under the authority of the United States are evidence of the true location of the claims surveyed. The government has provided, from the time of its first action upon land claims in Missouri, for surveys to be made by its own officers; and by the first section of the act of 29th April, 1816, providing for the appointment of a surveyor in Illinois«and Missouri, it is made his duty “to cause to he surveyed all lands the claims to which have been or may be hereafter confirmed by any act of Congress which have not already been surveyed according to law:” 3 Statutes at large 325. Surveys of these claims are alike necessary to the claimants and the government. To the claimants in order that they may have the boundaries of their land defined, and to the government that the lands may be ascertained which are subject to disposition under its laws. The acts of Congress thus imposing the duty upon the officer, acknowledge the right, of every person having such claim, to have his land surveyed. When the survey is made and passes through the examination and receives the sanction contemplated by law, it is conclusive upon the government. It is in like manner conclusive upon all persons who claim title to the land, under titles originating subsequently to the survey; and it is of course conclusive upon all mere intruders and strangers without title to the land. It is prima facia evidence of locality, against all persons who claim under an opposing title; for, to make it less would be to deny to the claimant the right to have his land designated and set off to him, which the laws have always conferred. If there is a conflict with another title, it must be with a claim having its locality ascertained by another survey, and when two surveys thus conflict, the question — 88 — of the proper locality of such, is to be determined by evidence running back through the whole history of both claims. If it appears, when all the evidence is presented that the two titles when properly located, cover the whole or part of the same land, then the right will be determined as a question of law, in favor of the party whose title, by its character and age, is the superior title. If the titles are of the same age and description, and there is no evidence to impeach the correctness of the survey of either, then the defendant, being in possession, cannot be disturbed. It is a great error to suppose that two surveys may not be correctly made to cover the same land. The history of land claims in this vicinity, abundantly proves that the same land has been included in different grants from the Spanish government, and that confirmations have been made, under the United States, to different individuals, which cover the same land. The fact then, that confirmations are represented by surveys to embrace the same land, is no impeachment of the correctness of the survey. When therefore the court told the jury in this case, by the third instruction, “that the survey of the St. Louis commons, given in evidence by the defendant, is to be presumed to be correct, and to be the true boundary thereof, unless it is proved otherwise^ and that If the Cottard claim is located so as to lie chiefly within the tract confirmed to the inhabitants of the city, as commons, then such location is an erroneous location,” an error wan committed in stating the consequences of such conflict between the surveys. And so the 6th instruction, which declares that the interference of the Cottard claim with the survey of the Chouteau mill tract, is conclusive evidence of error in the location of the Cottard claim, is equally erroneous.' It is not necessary in the present state of the law, as settled by judicial decissions, to employ argument in support of the position, that a confirmation by the first section of the act of 13th June, 1812, if a common field lot, is superior to an opposing title which stands alone upon the confirmation by the act of 29th April, 1816. If the act of 1812 gave the land to one person, the act of 1816 would not give it to another. The- 7th and 8th instructions were therefore properly given. There are several of the ten instructions asked by the plaintiff and refused by the court, which will need no comment, as upon a future trial of the case the principles already declared' as to the effect of surveys will furnish a sufficient guide to the circuit court. In regard to the first instruction asked by the defendant, it is only necessary to say, that if the plaintiff’s claim, under a confirmation by — 89 — the act of 1816, when surveyed in its proper place conflicts with a New Madrid location, that the confirmation is the better title. The fourth instruction declares the effect of monuments and visible boundaries as controlling course and distance in the location of a grant. It has so often been declared, that known and fixed monuments,' called for in a grant or deed, will control the courses and distances stated in the same instrument, that it is not necessary to refer to authorities upon the point. It is believed that in most if not all the states the law has been thus settled. As the instruction does not apply the principle to the calls of any. grant or deed which was in evidence before the jury, i:t is impossible for this court to determine whether the instruction was rightly refused or not. It sufficiently appears from what has been said that the circuit court has erred in the instructions given to the jury, and therefore with the concurrence of the other judges the judgment is reversed and the cause remanded, for further proceeding according to this opinion.