Tigh v. Chouquette

Scott, Judge, delivered the opinion of the court. 1. The idea in which the defence of the plaintiff in error seems to be conceived, cannot be sustained. That idea is, that the execution of a deed for a lot in the town of Carondelet was the execution of a naked power ; and, unless all the circumstances existed that warranted its exercise, the act was void. It is believed that such is not the view to be taken of the act and ordinances under which the authorities of the town proceeded in settling the titles and disposing of her vacant and unoccupied lots. [236] The act of 13th February, 1833, conferred on the board of trustees of the town of Oarondelet authority to sell and convey, in fee, all the vacant or unoccupied lots of ground to which the inhabitants of the town had the legal or equitable' title. This act was passed, not because the property, whose sale was authorized, did not already belong to the inhabitants, but because it was held in common, and the act was passed to enable them to convey it in a corporate capacity. This statute conferred no title on any person who had not one previously. The power of ascertaining which of the lots were vacant or unoccupied, must have been given to the inhabitants. But such a power could not warrant them in disturbing the title of any individual which he possessed under any law or ordinance. Subject to this qualification, the inhabitants determined which of their lots were vacant or unoccupied. If there was a squatter on a lot, that would not prevent them from considering it as vacant. Public land, on which a settler is seated without authority, is, nevertheless, regarded as vacant. Under the first section of ordinance No. 31, Chouquette, on his own possession prior to the year 1832, was not entitled to a lot. He was not on the land personally until 1834. Although he may have availed himself of a derivative possession, yet he claims under those who only conveyed the north-west corner, or quarter of block 87. If, in his occupancy of that corner or quarter, he encroached on another lot in the same block, the subject of this suit, which was apparently vacant or unoccupied, or unclaimed, as appeared by Eiler’s survey, such encroachment would confer no title under ordinance No. 31. It would not rightfully prevent the lot from being considered as vacant by the inhabitants. In the case of Reilly v. Chouquette, 18 Mo. Rep. 227, this court held that nothing but bad faith and a wanton usurpation of power could avoid a deed of the inhabitant's under the act of the 13th February, 1833 ; that, if the circumstances existed under which they were warranted in acting, no error in judgment, no mistaken conclusion of law ’would be allowed to invalidate the act. The inhabitants, then, acting on [237] this subject, and baying determined that this lot should be sold, there is no foundation in law for the plaintiff, claiming under them by a subsequent conveyance, to contest, on the ground of mistake or misapprehension, the correctness of that determination, whether made by the inhabitants or the chairman deputed by them. There is no hardship in this on Chouquette, who is merely asserting a title acquired from the inhabitants subsequent in date to that of the plaintiff. The law entrusted the inhabitants with the authority to sell and compromise their titles to the vacant lots in their village. They have done so, and in so doing have passed away a title. Now no one claiming under them subsequently can allege that their judgment was erroneously exercised, in coming to the conclusion that a lot was vacant. 2. The question as to the validity of the deed, growing out of the form and manner of the execution of it, we consider as settled by the case of Reilly v. Chouquette, to which reference has been already made. The deed in the present suit was executed under the third section of the act of 13th February, 1833. In the case cited, it was under the 4th section of the act, and that section provides that the deed under it shall be executed in the manner and under the restrictions prescribed by the 3d section of the act. Then, if the deeds are alike, as they are in respect to the matter to which objections are made, the deed under the 3d section must be valid. Ordinance No. 19, approved July 15th, 1833, authorizing the sale of all the vacant and unoccupied town and out-lots of Carondelet, is not preserved in the record of this case ; but as no point was made on its absence, its omission cannot vary the judgment. The cause has been considered as though it was ia it. The judgment is affirmed; the other judges concurring.