De Lassus v. Winn

GANTT, P. J. This is an action of ejectment for the south half of the southwest quarter of section 8, township 64, range 13, in Schuyler county, Missouri. The suit was commenced October 1, 1898. The answer is a general denial and the further plea that defendant bought the land in 1883 in good faith, received a warranty- deed therefor, and had made lasting and valuable improvements thereon, and' paid all taxes, and praying for an accounting for the value of said improvements and taxes if plaintiff should recover. The cause was tried in 1899, and judgment was rendered for defendant. Plaintiff appeals. Plaintiff introduced in evidence the government plat hook of entries showing the names of August D. de Lassus and Marie J. B. de Lassus on this tract, of date July 2, 1855. Plaintiff then offered evidence of Placide de Lassus to the effect that August de Hault de Lassus was his father and husband of the plaintiff Marie, and that said August died in January, 1889. That plaintiff lived in Paris, France, and had lived there since 1848, apart from her husband. That said Au [642] gust was trustee for his said wife for certain lands conveyed to him by Papin. ■ There was no evidence that the land in suit was ever conveyed to August by Papin, and there is no legal evidence that August ever held title to this land in trust for his wife, Marie, the plaintiff. Defendant had been in possession for more than ten years before this action was commenced. Plaintiff’s claim was that, by virtue of the entry, she and her husband August were tenants by the entireties. This was the case made in chief. The defendant then read in evidence the patent from the United States to Charles de Hault de Lassus or his legal representatives to the land in suit under the act of Congress of July 4, 1836, issued'February 3, 1858. This patent recites a relocation on account of conflicts of previous sales and locations and reservations for school lands in section 16, township 54, range 3, and section 16, township 55, range 4. These interferences and sales included 22,423.55 acres in surveys numbered 13083 and 1684, but there is nothing to show where these surveys were. Governor Chas, de Hault de Lassus, the patentee, died about 1843, leaving August as his only son and heir at law. Defendant also read in evidence a sheriff’s tax deed to August de Lassus and L. F. Cottey of date March 7, 1883, also a quitclaim by Cottey to said August of date April 28, 1883, and a warranty deed from August ‘de Lassus of April 28, 1883, to defendant for the lands in suit. This deed in the premises recites that August de Hault de Lassus of St. Francois county, for himself and also as trustee for Marie J. B. de Lassus, is party of the first part, and Winn, the defendant, party of the second part. The covenants are all made by August de Lassus. The acknowledgment purports to convey the dower of said Marie. [643] lYinn, the defendant, testified that the land was brush land when he bought it in 1883; that he cleared it and fenced it, and took actual possession that year and has ever since remained in possession; that he bought it in good faith, believing he was getting a perfect title. Was informed.at the time that August was the trustee for his wife and empowered to sign her name. Never saw the plat book. Had no knowledge she claimed the land until this suit was brought. In rebuttal, plaintiff offered in evidence a deed from August de Lassus to Louis Barthiamy McCarty, dated September 17, 1843, purporting to convey “all his right, title and interest in and to any and all lands he may own or have , claim to lying in Missouri which have descended to me as a child and heir at law of Charles de Hault de Lassus, deceased, at New Orleans on the first day of last May and which lands are twenty thousand arpents on Salt river, granted by the Spanish government to said Charles de Lassus; the undivided half interest of about 30,000 arpents lying on or near Cuivre river, which land was confirmed in the name of McKay, the other half belonging to the heirs of McKay, and another tract lying near St. Genevieve and known by the name of LaFourehe Armand. ’ ’ This deed was recorded in Pike county, May 6, 1844. The plaintiff also offered evidence tending to prove that said .McCarty died without having ever married, and that plaintiff is a collateral heir to one-fourth of his estate. A certified copy of the plat in the United States Land Office' at Boonville of date May 1, 1899, showed this tract covered by a certificate in name of August and Marie de Lassus. This was practically all the evidence. No instructions were asked or given and the court found for defendant. Schuyler was organized from the northern portion of Adair county by act of the General Assembly, Feb [644] ruary 17, 1843. [Laws 1842-3, p. 46.] Adair county was organized in 1841. Schuyler was never within the boundaries of either Lincoln or St. Charles. While no instructions were asked or refused, it would seem that the judgment of the court could not have been other than it was. The patent to Governor de Lassus or his legal representatives is regular on-its face and conveyed the legal title to him and his heirs. August de Lassus is conceded on all sides to be the only heir at law of Governor de Lassus, and defendant holds by a warranty deed from said August. Thus defendant has a-straight legal title from the original patentee from the United States. There is nothing whatever in the record to impeach this legal title except the entries on the plat book. It was ruled at an early day in this State that a patent is a better legal title than ah entry. [Griffith v. Deerfelt, 17 Mo. 31; Bagnell v. Broderick, 13 Peters (U. S.) 436; Wilcox v. Jackson, 13 Pet. (U. S.) 498; Cunningham v. Snow, 82 Mo. 591.] At most the recital in the deed that August de Lassus was trustee for his wife, was evidence of an equity in her, and by her own evidence she disproved any trust as to him in this land. This is an action of ejectment, and if plaintiff has any equities she can mot enforce them in this form against a grantee in good faith holding the legal title. > The deed from August to McCarty of date September 7, 1843, was executed after the organization of Schuyler county, and was never recorded in Schuyler county, and the record of that deed in Lincoln county was inadmissible to show constructive notice in subsequent purchasers in Schuyler county. Constructive notice is a creature of the statute, and to be of any force the statute must be complied with. [Alt v. Fullerton, 151 Mo. 603.] [645] II. There was no error in refusing a new trial on the ground of newly-discovered evidence, the purport of which was that, since the trial, plaintiff’s attorneys had discovered the record of a deed purporting to have been made by J. O. Denis, as attorney in fact of plaintiff and her husband August de Lassus, October 1, 1855, under an unrecorded power of attorney conveying this land to one Barnett, and a deed from Barnett to plaintiff, executed in 1867, recorded in Adair county, conveying all rights under certificate of relocation number 152, not describing any lands. It quite satisfactorily appears that plaintiff’s attorneys knew of this alleged conveyance before the trial, and if it had been offered would have carried no notice to defendant, who was shown to have been an innocent purchaser without actual or constructive notice of any of the contradictory claims asserted by plaintiff. The judgment is affirmed. All concur.