Blair v. Marks

Napton, Judge, delivered the opinion of the court. The validity of the title in dispute in this case depends mainly upon questions of fact. The controversy turns principally upon the ascertainment of the true location of the south-west corner of the tract conveyed by Chouteau to Merriwether Lewis. Whether this corner was fixed by Chouteau in what is now known to be the eastern line of the common field lots, was a question of fact determined by the jury in this case under instructions not complained of. The jury have found that Lewis’ south-west corner was not in this line, but some two hundred and twenty feet east of it. Assuming that the Lewis tract is a part of the Chouteau concession, and that the south-west corner of the two tracts is identical, the question still remained whether the corner established by Brown, in 1817, was the same established by Soulard in 1803 ; for it is clear that Chouteau’s conveyance to Lewis, in 1809, by metes and bounds and fixed monuments, can not be controlled by a survey made in 1817. The landmark set up by Soulard at the south-west corner, in 1803, is gone. Hence a mass of testimony was introduced on either side to establish this corner, the plaintiff maintaining that the United States survey of Brown, in 1817, was correct, and established the south-west corner of the survey precisely where Soulard had previously located it, and the defendant insisting that Brown’s corner had been placed at least fifty [584] or sixty feet east of the old Soulard corner. If the latter supposition was true, the defendant was entitled to a verdict, as it appears that a removal of Brown’s survey fifty or sixty feet westwardly would leave the defendants’ lots outside of the Lewis tract. If the plaintiff’s view prevailed, the Lewis title, under which he claimed, would cover the land in dispute. Upon this question of fact, no opinion of this court will be expected, or would be material. Our duty is limited to see that this question was tried under instructions not unfavorable to the party who lost the verdict, and that no illegal evidence was introduced, and no legal evidence excluded. One of the first links in the chain of the plaintiff’s title is a deed from the administrator of Merriwether Lewis, in 1811; and it is insisted that this deed was unauthorized by law; that the sale of which it was evidence was unwarranted by the statute; and that the proofs, which would alone justify the admission of such a deed, supposing the law to have warranted both the sale and the deed, are wanting. The act of 1807, under which this proceeding was had, is as follows (Terr. Laws, p. 138) : “ If any person shall die intestate, being, owner of lands and tenements within this territory at the time of his or her death, and leave lawful issue, but not sufficient personal estate and slaves to pay his just debts and maintain his children, in such case it shall and may be lawful for the administrator to borrow or mortgage, &c., or to sell and convey such part or parts of said lands and tenements as the general court shall in either case, from time to time, think fit to allow, &c., for defraying the debts, maintenance of the children,” &c., &c. It is said that it nowhere appears upon the record of the proceedings of the general court, on the application of Hemp-stead, administrator of Lewis, to sell real estate of the de-' ceased for the payment of his debts, that he died leaving lawful issue, and therefore that the court had no power to order a sale. This is not our construction of the law. No motive could be suggested that could possibly induce the [585] legislature to authorize a sale of the lands of a decedent to pay his debts when he left issue, and deny the power when he left none. To give the power in the former case, implies its existence in the latter. If the legislature would permit the lands of a decedent to be sold although he left children, a fortiori would they allow this to be done when he died childless; and this is doubtless the proper construction of the act, although it must be admitted to be expressed in a peculiar and rather inartificial manner. Besides, a contemporaneous construction of this law by the highest judicial tribunal in the territory, made nearly fifty years ago, would hardly be disturbed by this court now, whatever views might be entertained of its true interpretation. But we entertain no doubt that the construction given to the act by the general court of the territory was the correct one. The power of the administrator to make a deed is implied in the power to sell. Indeed, the language of the statute is to “ sell and convey,” thereby giving the administrator an express authority to make a deed. The report of Hempstead, administrator of Lewis, to the general court, of his sale under their order, is suifici^ deuce that all the prerequisites to a sale required of been complied with. After a lapse of forty or fiS proof of the advertisements, which the law requirec&ti^ court ordered, would hardly be expected or required. There was no error in permitting the plaintiff t^ evidence the deed from O’Hara to Price, and the a'6 nying plat. The defendant had given in evidence the deec from Price to O’Hara, obviously with a view to show how Price, under whom plaintiff claimed, had practically located the O’Hara tract. This testimony was legitimate and was admitted, but the admission of this deed from Price to O’Hara undoubtedly authorized the plaintiff to explain Price’s conduct in relation to the location of that tract. The testimony was strictly in rebuttal and explanatory of what had been used by the defendant as admissions or declarations or acts of the plaintiff. When Price accepted the deed from [586] O’Hara, reconveying to him a part of tbe identical tract which lie had p-eviously conveyed to O’Hara after it had been subdivided into town lots, he became a party to that deed and its accompanying plats ; and his act in receiving the deed and acquiescing in the location which that deed tended to prove, was proper to go to the jury in connection with his original deed to O’Hara. The evidence was admissible, we think, upon the same principle which allows a party, whose declarations, admissions or acts are given in evidence by his adversary, to give in evidence further declarations or acts which are a part of, or connected with and explanatory of, those previously used against him. The second instruction, which is found among the defendant’s refused instructions, was properly refused. At all events, its refusal is not, according to the established practice of this court, a ground for reversing the judgment. The deed from Lewis’ administrator to Price was in evidence ; it was undoubtedly evidence that the land thereby conveyed was bounded on the west by the forty arpent lots, for such was the language of the deed. This the jury could plainly observe without any special instruction on the subject; but when the attention of a jury is called by the court to any specific piece of testimony, it frequently misleads a jury into an idea of its importance which it may not deserve and which the court would not attribute to it. Had the instruction been so framed as simply to call the attention of the jury to that part of the deed as one of the circumstances which they might consider in coming to a conclusion relative to the location of this tract, it would probably have done no harm, and the giving of such instruction would have constituted no error; but the instruction was not asked in this shape, and its language might have misled. The first of the defendant’s refused instructions was properly refused. The third is identical with the one given by the court. The fourth instruction given for the plaintiff is objected to, but that objection presents the same question which was [587] raised by the admission of the deed from O’Hara to Price. If the deed and plat were admitted, the court committed no error in declaring tbe principles of law which ought to guide the jury in locating the O’Hara tract. To the other instructions given for the plaintiff no substantial objections have been suggested. Although the first instruction has been criticised, we do not think it could have been misunderstood. It seems merely designed to convey the idea, that, if the Lewis tract covered the land in controversy, the plaintiff was entitled to recover, unless the fact of an estoppel was found. We can hardly suppose that the jury had any difficulty in understanding it, or that it could possibly have misled. We do not wish tó be understood as passing any opinion upon the plaintiff’s refused instructions. Whether right or wrong, their refusal can be no ground of error here. Other cases, as we are informed by the counsel, are still pending concerning portions of this same tract, and therefore an examination of the evidence in detail has been abstained from. It is manifest that there was conflicting testimony, and as we have no power to disturb the verdict, whatever our opinion might be upon the facts, it is unnecessary to express any. The court which tried the case has sanctioned the verdict, and according to well established rules of this court we do not interfere in a case of conflicting testimony. Judge Scott concurring, the judgment is affirmed. Judge Richardson not sitting, having been of counsel.