Boone v. Moore

| Mo. | Mar 15, 1851

Napton J.,

delivered the opinion of the court.

This was an action of ejectment, brought by the heirs of John W.Boone to recover possession of a tract of land in St. Charles county, containing about three hundred and twenty acres. The plaintiffs’ title was derived from a confirmation under the act of July 4, 1836. Their title papers were the following:

1. The report of the board of commissioners, by which it appears that in November 1833, the claim of David Cole to four hundred ar-pens of land, according to the concession, was confirmed to said .David Cole or his legal representatives. The concession was made in 1798 and was surveyed by Mackey in 1804 or 1805. The claim was filed before the Recorder of land titles in 1808 by Jesse Richardson, assignee of Mackey, assignee of Cole. The transfers from Cole to Mackey and from Mackey to Richardson were produced before the old board and filed.

2. A title bond from Jesse Richardson to Zaehariah Moore, and an assignment of the same to John W. Boone. By this Richardson obliged himself to convey the tract in question to said Moore, so soon as it was confirmed — upon the payment of $800.

3. A copy of a deed from Cole to Mackey, admitted to have been received from the office of the recorder of St. Louis county — and a copy of a deed from Mackey to Richardson and wife, with evidence that careful search for the original thereof had been made without success in the recorder’s office of St. Charles and St. Louis, in the office of the United States District Court at Jefferson City, and United States Circuit Court at St. Louis, and the United States Surveyor’s office at St. Louis and among the papers of Jesse Richardson and those of Luke E. Lawless, the attorney who obtained the confirmation. These two papers were rejected.

4. A deed from Richardson and wife to the heirs of John W. Boone. This deed was dated 21st February, 1837 — it conveys to “the heirs of the estate of John W. Boone, deceased, and assigns forever,” the tract of land confirmed to Richardson, assignee of Mackey, &c.

Upon the close of the plaintiffs’ evidence which consisted of the title papers above described and some oral testimony relating to the occupancy of the land, the circuit court at the request of the defendant’s counsel instructed the jury that the plaintiffs were not entitled to recover. Thereupon the plaintiffs took a non-suit, and to set aside the non-suit is the object of the present writ of error.

The first question which the record presents arises from the exclusion by the circuit court of the two copies of deeds from Cole to Mac-key. and from Mackey to Richardson. If the confirmation made by the act of Congress of July 4, 1836, was to Richardson, and not to the legal representatives of Cole, the admissibility of these copies is an immaterial question. We understand the Supreme Court of the United States to have distinctly decided this question in the case of. Bissel vs-Penrose, (Dec. term, 1849). That was a claim for 4000 arpens of land by the five sons of Vasques, one of whom, Benito, had assigned his claim to his proportion to one Rudolph Tillier. The whole claim was rejected by the old board of commissioners, but in 1833 it was confirmed by the second board. The name of Rudolph Tillier does not appear in the proceedings of the last board. The following is the decision of the board, as confirmed by act of Congress :

“ The board are unanimously of opinion that the claim ought to be confirmed to the said Benito, Antoine, Hypotite, Joseph or Pierre Vas-ques, or their legal representatives, according to the concession.”

This decision was held to be a confirmation to Rudolph Tillier, who filed the claim before the recorder, and sought its confirmation before the first board of commissioners.

Whatever may be thought of the grounds upon which this opinion is based, it will hardly produce any practical injustice, unless in rare cases Mr. Justice Nelson appears to place the decision on the case of Strother vs. Lucas, and the usages of the Land Office. The case of Strother vs. Lucas must admit of a very latitudinous construction, if it can be applied to such confirmations' as these, and the practice of the Land Office, as referred to by the learned Judge (2 Land Laws p. 747, 752) up to the period of Mr. Attorney General Bates’ opinion in 1838, 1043, is decidedly against such a construction.

It would be a labor neither j ustifiable nor agreeable to enter into a full examination of this suhject, in the present case. The whole subject was fully and ably discussed in the case of Tison vs. Labeaume, and I will give my views in that case upon the act of 1816, where a similar question arises.

In the case now before the court, there.is no conflicting title, and th© application of the decision in Bissell vs. Penrose is appropriate and just.

It is suggested that the instruction given by the circuit court may be justified upon the ground that the deed from Richardson and wife to “the heirs of John W. Boone, deceased,” was inoperative. We do not so understand the law. A deed to the heirs of a man deceased is valid. Id cerium est quid cerium reddi protest. The presumption of law would be in favor of sustaining the deed, if any presumption at all is to be indulged. There was, however, proof in this case, showing who the heirs of Boone were, and although the time of Boone’s death was not directly proved, there was certainly some evidence indirectly bearing on that point. It was a question for the jury whether Boone was alive or dead at the time of the execution of this deed.

Judgment reversed and cause remanded.