Joyal v. Rippey

Gamble, Judge, del-ivered.the opinion of the court. The answer of the defendant alleges that the ground in controversy was included in a lot of 120 feet in front by 150 feet in depth, French measure, which was inhabited, cultivated and possessed prior to the 20th December, 1803, by Nicholas Beaugenon, having its front on Third street, and bounded on the south by Almond street. Of this possession, no evidence is [665] given, and there does not appear to have been any action before the recorder of land titles under the act of 1824, to prove the extent and boundaries of such possession. In the answer, the defendant sets up, as part of his title, a deed from widow Charleville to Pierre Chouteau, and in the evidence, an exchange between widow Charleville and Rousseau dii La Route is mentioned, but neither-of these deeds is on the record. We must take the case as we find it, and decide it as the parties have prepared their record. The certificate of confirmation, in favor of Joyal, and the United States survey, under the confirmation, are admitted to include the premises in controversy, and make out a prima facie case in favor of the plaintiff, with the will of Joyal, devising the property to the plaintiff. This is resisted by giving in evidence the certificate of confirmation in favor of QuenePs representatives, and the survey under it. The defendant did not claim under Quenel by any title set out in the case, but made it the basis of the instruction which he asked, and which presents the only question argued by his counsel. That instruction declares the law to be that, if there was a deficiency of land in the block to satisfy all the confirmations of the same date, the four lots in the block should be divided equally, and one given to each of the parties in the case, unless there was an agreement as to lines, or an adverse possession of twenty years controlling the division. Such is the substance of the instruction asked by the defendant and refused by the court. It is to be remembered that the certificates of confirmation, issued by the recorder, under the act of 1824, do not, in themselves, profess to be documents transmitting title. They are received in court as prima facie evidence that the lot described Ayas cultivated or possessed prior to the 20th December 1808, and Avas confirmed to the claimant by the act of June 13th, 1812. McGill v. Somers & McKee, 15 Mo. 86. So the surveys made under the reports and lists of the recorder, returned to the surveyor general as directed by the act of 1824, are prima facie evidence of the true location of the lot as [666] possessed prior to the 20th December, 1803, and confirmed by the act of 1812. If there should be a conflict between the certificates and surveys of two contiguous lots, the parties would be remitted to the proof of their possession prior to December, 1803, and by evidence going back behind the proceeding of the recorder, it would be determined what land was confirmed by the act of 1812 to each. The surveys in the present case d'o not conflict, for they call for each other, and the line between the lots is established by them, so far as the surveys of the United States could have that effect. It is true that the proceeding before the recorder, in-relation to the claim of Quenel’s representatives, is for a lot of sixty feet in front by three hundred feet in depth, and that the survey which forms a part of the certificate of confirmation, gives a front of sixty feet and two inches on Second street, and only fifty-four feet ten and a half inches on Third street. But as there was no evidence in the case of the actual possession, prior to the 20th December, 1803, nor of the nature'and extent of the original claim, it is impossible to say that the survey is erroneous because it does not contain the quantity claimed before the recorder. Suppose the case that the actual ancient possession had encroached upon the street, which was the southern boundary of the lot, to the extent of the present alleged deficiency, could the party claim that, when the street was surveyed, so as to include a part of the possession, his lot should be projected the same distance to the north upon the contiguous lot of his neighbor ? . Undoubtedly not. This is mentioned merely to. show that the survey may be correct when the party fails to get the quantity he claimed; and so it will follow that the mere fact that there is a deficiency of land in the block, when its limits are accurately ascertained, to satisfy all the claims asserted and proved before the recorder, does not show that the survey of the Quenel lot, giving to it less than the sixty feet front, on both streets, is an erroneous survey, or that the surveys of the other lots in the block, by which they get their quantity, are erroneous. As the certificates of the recorder, and his proceedings under [667] tbe act of 1824, do not originate titles, we must have the evidence of tho original claims and possessions before us, before we can declare that all the surveys iñ a block are erroneous, because one of the parties has a smaller quantity surveyed for him than he claimed before the recorder. The instruction asked by the defendant was substantially an instruction that all the surveys in the block were incorrect, and the only ground for such declaration was, that the Quenel lot was smaller, as surveyed, than the quantity claimed before the recorder, and there was a deficiency in the block to satisfy all the claims made before that officer. Upon the state of the evidence, the instruction was properly refused. The instructions given by the court, upon the effect of the certificates cf confirmation and surveys, and upon the effect of an agreement between the parties, in relation to the division line between them, were correct, according to previous decisions of this court. So, also, the instruction in relation to JoyaPs possession of the ground for twenty years previous to the ouster by the defendant, was correct. The judgment will be affirmed.