69 Mo. 176 | Mo. | 1878
This suit was brought by plaintiffs on the 19th day of May, 1875, as re|>resentatives of Pierre Dorian, to recover part of survey 1303. In 1780 Lieutenant-Governor DeLeyba granted to Peter Dorian a tract of land on the Mississippi of four arpens on the river, and forty arpens deep, at the mouth of Little Rock Greek. Upon the death of Dorian, this land was conveyed in 1799 to Joseph Robideaux. Thus far there is no dispute. In the year 1800 a deed is produced, made before the Lieutenant-Governor DeLassus by Robideaux to Juan Arenton. This deed is signed by Joseph Robideaux and Jonathan Hillebran and by the Lieutenant-Governor, Joseph Hortiz, and P. Lafillard as witnesses, and recites that Arenton was present, though his name is not signed as grantee. The plaintiff's then read a certified copy from the office of the recorder of land titles on the 27th day of October, 1808, in which record of the board of commissioners, consisting of Lucas, Penrose and Bates, is a'recital that Jonathan Hillebran, assignee of Joseph Robideaux, claiming 240 arpens of land, situate on Little Rock Greek, produces to the board a plat of survey by Soulard, dated 11th day of
The evidence offered and read by defendant consisted of the same papers produced by plaintiff, including the deed from Robideaux to Arenton; defendant then read besides a confirmation by the old'board dated December 6th, 1811, as follows : Friday, December 6th, 1811. Board met — present J. B. C. Lucas, Clement B. Penrose, Frederick Bates. Certificate 1303. John Herrington, assignee of Joseph Robideaux, assignee of Peter Dorian, claiming 240 arpens of land situate at Little Rock on the Mississippi River, district of St. Louis, produces a concession from Fernando DeLeyba, Lieutenant-Gfovemor, to Peter Dorian, dated 31st day of March, 1780, record of a conveyance from Robideaux to claimant dated 24th day of May, 1800. A majority of the board, John B. C. Lucas, commissioner, dissenting, grant to the legal representatives of Peter Dor
The defendant then read commissioners’ certificate No. 1303, dated December 6th, 1811, as follows: “Commissioners’ certificate No. 1303, December 6th, 1811. We the undersigned, commissioners for ascertaining and adjusting the titles and claims to land in the territory of Louisiana, have decided that- Peter Dorian, original claimant, or his legal representatives, .are entitled to a patent under the provisions of the 2nd section of the act of Congress, entitled ‘An act respecting claims to land in the territories of Orleans and Louisiana,’ passed the 3rd day of March, 1807, for 240 arpens of land situate in the district of St. Louis, Little Rock, on the Mississippi, and order that the same be surveyed conformably to possession. By virtue of ten consecutive years possession prior to the 30th day of December, 1803. Signed, J. B. C. Lucas, Clement B. Penrose, Frederick Bates.”
The defendant then read certificate of survey made April 1st, 1818, by Langham, which has already been re-1 cited, and then read Recorder Bates’ certificate dated October 30th, 1822, as follows : “ No. 49. Office of the Recorder of Land Titles. St. Louis, October 30th, 1822. 'It is hereby, certified that pursuant to acts of Congress respecting claims to land in the territories of Orleans and Louisiana and territory of Missouri, the claim of Peter Dorian’s legal representatives for the quantity of 240 arpens, No. 1303, has been duly confirmed, and that on the 1st day of April, 1818, the said tract was regularly surveyed, containing 204 acres and 2-100ths of an acre, as per plat herewith, authenticated by the United' States surveyor’s office, and designated in the connected plat as No.
The act of Congress of June 6th, 1874, was read on both sides ; and the defendant then read a deed from J. C. Herrington and others to John Eps Cowan dated 14th day of June, 1878, made after the institution of this suit. Joshua Herrington was then examined, who stated that he was sixty-four years old, and that John Herrington • was his father; that his father came to Missouri in 1799 : that he lived at a place near Pevely, some five or six miles south of the Dorian claim ; that in 1811 John Herrington went to Arkansas; never lived on the land in controversy; that the witness, who was his son, never'heard from his father, or any of the family, or from any one else, that his father ever resided on the land in controversy ; that he was born at a place, as he heard, south of the Dorian claim ; that he understood from his father that he staid seven or eight years in Arkansas when he went there in 1811. This witness ■ stated that he never knew of any John Herrington except his father. "When John Herrington came back here he remained in this (Jeffm’son) county till his death in March, 1864. From 1822he lived sixteen or seventeen miles from the Dorian survey- till his death. That Jonathan Hillebran married his father’s sister, and attended to his father’s business when the latter went to Arkansas; that Hillebran'Vas a man of some business tact, and could read and write, but his father could not write his name ; that Hillebran died in Jefferson county at a very advanced age. This witness stated that he never heard his father claim the land in controversy, and never heard that he had any claim ; that he gave the deed to Major Cowan, when asked for it, but was not aware that he had any title whatever to it.
The question presented by this case is a nt^el one, notwithstanding the various decisions in this court in regard to confirmations under the old board of commissioners
It is remarkable that three days after the confirmation on the application of Herrington, in 1811, who was probably then in Arkansas, Hillebran conveyed to Brinley. There is some mistake in this case, and we are unable to determine whether it originated in the first conveyance of Robideaux to Arenton, or Herrington. The latter, it is clear, never was in possession of the land, and Hillebran was. It is a case in which a jury might presume a deed from seventy-five years possession.
The plaintiffs and defendants both claim under the Hillebran title, and the deed of 1875 from Herrington’s heirs cuts no figure in the case, especially when considered with the evidence given by Herrington. It is worthy of remark that the claim presented' in 1811 in the name of Herriugton, doubtless by Hillebran, was in all probability when John Herrington was in Arkansas. Why he submitted his claim to the board of commissioners, at first in his own name, and afterwards in the name of Herrington, is not explained by the evidence; but it is clear that Herrington never was in possession of the land, and never made any claim to it. He lived in the neighborhood, four or five miles south of it, up to 1811, and then went to Arkansas ; and returned from Arkansas after seven or eight years’ absence, and lived in Jefferson county till his death, and never, during all this time, spoke of any claim he had to the Dorian tract, either to his children or any one else. It is impossible to resist the conclusion that he was ignorant of any such claim, and knew nothing of what his brother-in daw, Hillebran, had done in his name. Con
The doctrine of nullum tempus occurrit regi has no application, since beyond doubt the title of Spain had passed to Robideaux, and the United States had confirmed this, and the only question before the United States commissioners was to whom Robideaux had conveyed. They never determined this question, but confirmed to his legal representatives. The dissent of Lucas evidently arose from this discrepancy, as Ilillebran presented the claim. It was ultimately confirmed to the legal representatives of Dorian or Robideaux.
Actual possession was, as will be seen, the main basis of the confirmation and survey, under the Spanish law. Instead of four by forty arpens, the survey was of six by forty arpens, in accordance with possession; and Ilillebran went into possession in 1800, and continued in possession till he sold to Brinley in 1811. All this time Herrington lived within a few miles of the tract; never made any claim to it during his life. It is impossible to conclude otherwise than that the deed to him was a mistake, or that he conveyed to Ilillebran. At all events, this was a matter for the jury, or a coui’t trying the- facts when a jury was dispensed with.
In the case of the Mayor v. Horner, Cowp. 102, Lord Mansfield observed, “that if a foundation can be laid that a record or a deed existed and was afterwards lost, it may be supplied by the next best evidence to be had, or if it cannot be shown that it ever existed, yet enjoyment under a title which can only be by record is strong evidence to be left to a jury that it did once exist.” In the case of Eldridge v. Knott, Cowp. 214, the court of Kings Bench adopted the same doctrine, and referring to the case of the Mayor of Kingston v. Horner, adds, “ that it is not in such case that the court really thinks a grant has been made, because it is not probable that a grant should have existed without its being on record, but they presume the fact, for the pur
No statute of limitations was pleaded, and indeed, since the suit was brought within one year of the passage of the act of Congress of June 6th, 1874, none could be pleaded. See the act of February 27th, 1874, (Sess. Acts 1874, p. 118, § 2). The judgment is, therefore, reversed and the cause remanded.
Reversed.