Barada v. Blumenthal, 20 Mo. 162

Barada v. Blumenthal

20 Mo. 162 | Mo. | 1854

Gamble, Judge,

delivered the opinion of the court.

As the plaintiff claimed title to the lot in question, upon the ground that it was confirmed to Grregoire Sarpy by the act of congress of June 18th,_ 1812, and conveyed by Sarpy’s heirs to him, it was properly made a matter of defence that Sarpy had, previous to the passage of that act, abandoned the property, and that he then had no subsisting claim thereto. (Lajoie v. Primm, 3 Mo. Rep. 368. Page v. Scheibel, 11 Mo. Rep. 183.)

As there was evidence of the fact of abandonment by Sarpy, the court correctly refused to give the instruction asked by the plaintiff, which asserted that the title of Sarpy was confirmed by the act of 1812, if he possessed the lot prior to 20th December, 1803, thus throwing out of consideration the question made in the defence, that Sarpy had abandoned all claim to the lot prior to the passage of the act of 1812.

The first instruction given by the court correctly placed before the jury the law applicable to the plaintiff’s case, and correctly defined abandonment, as that definition is given in the Partidas.

The fact that Sarpy, in 1808, applied for and obtained the benefit of the act for the relief of insolvent debtors, (1 Terr. Laws, 181,) and that, in his inventory, he did not include this property, coupled with the fact that he had previously removed from it the machinery of the mill which he had erected upon it, and the occupation of which was his only possession of the lot, was evidence of abandonment, entitled to great weight.

The obligation upon a debtor applying for the benefit of the insolvent law to include in his inventory all his property of every description, when he is required to swear to its being a *165full, true, just and perfect account and discovery of all tbe estate and effects in any wise belonging to him, is as strong as it can be made. Although the title to a lot not mentioned in the inventory was not conveyed to the sheriff by the deed which the act required to be executed, and was not divested by the act itself, still, when a jury is considering the question whether the insolvent debtor had, at the time, a subsisting claim to a lot which is not mentioned in his inventory, its omission is strong evidence that he did not claim it. Sarpy had no paper title; he had had possession before the change of government, by erecting and running a mill upon the lot; he quit the occupancy of the lot, and removed the machinery of his mill to St. Louis ; afterwards, he made his inventory as an insolvent, and did not mention the lot as his property; the proceeding under the insolvent act was in 1808 ; the question in the case was, whether he had a subsisting claim to the lot in 1812, which was confirmed by the act of 18th June. The instructions were not stronger than the evidence justified. The judgment is, with the concurrence of the other judges, affirmed.