Chaput v. Pickel

250 Mo. 578 | Mo. | 1913

OPINION.

BOND, J.

(after stating the facts as above).

Grant by St. Ange. I. The first contention in the brief of learned counsel for appellants is that the trial court erred in excluding from the evidence the copy of the contents of the “Livre Terrien” No. 1, page 17, purporting’ to be a concession of title to the property sued for to Joseph Calve, signed “St. Ange-Labuxiere” and dated St. Louis, April 30,1768, set out in the foregoing statement. There was no error in this ruling.

An interesting account of the adventures of St. Ange, one of the signers of this paper, is contained in a decision of this court, Administrators of Wright v. Thomas, 4 Mo. 577. In that case it appeared that the same grantors (St. Ange and Labuxiere) executed a similiar concession of the same quantity of land (2 arpens in width by 40 arpens in depth) to the widow Herbert, on the 18th of July, 1769; and the crucial question then presented was the validity of that grant. The evidence then disclosed that St. Ange, who was a French officer, left the territory east of the Mississippi river after its cession to Great Britain by his home government under the same treaty whereby France also ceded her territory west of the Mississippi river, including St. Louis, to the Spanish crown; that St. Ange did not know of the latter grant and supposed when ho retired from east of the Mississippi river and took up his residence in St. Louis, that he had again become a resident of French territory; that he was accompanied by a number of French citizens who preferred, like himself, to retire from the east side of the Mississippi after its transfer to Great Britain, and supposed, like himself that St. Louis was still a part of the French domain; that during his residence in St. Louis and prior to the promulgation of the treaty whereby that had become a part of the Spanish possessions, he was accustomed to make similar grants of land, and during the interval previous to the arrival of a Spanish governor he assumed in many respects the prerogatives of that officer, but neither had nor claimed any commission so to do; that after the establishment of the Spanish authority, A. D. 1770', some of the grants made by St. Ange and Labuxiere were confirmed under the authority of the Spanish government. The court held that until this happened such grants had no validity whatever, and ruled that the grant then before the court, not having been confirmed by the Spanish government, had no legal force whatever and carried no title but must be regarded as simply the act of a private citizen ‘ ‘ of some influence and distinction,” and made without any adequate or official authority.

It is not claimed in the case now under review, that the concession made by St. Ange and Labuxiere on the 30th of April, 1768, was ever confirmed by any authorized representative of the Spanish government, to whom the territory including it then belonged. Some confirmations were made in the year 1770, but there is no evidence that the concession in the present case was one of those confirmed by the Spanish government.

While it is provided by our statutes that copies of the contents of the land book commonly called “Livre Terrien,” from which the concession was copied and certified to by the Secretary of State, are admissible in evidence, yet the statute expressly states that this is done “with like effect as the original.” [R. S. 1909, sec. 6302.] Clearly, therefore, this copy can have no evidentiary or probative force which would not be given to the original if it had been produced on the trial of this case. And since it has been shown under the ruling before cited, that the original would not have constituted any muniment of title, the trial court did not err in excluding from evidence the copy offered by appellants.

Patent to Representative. II. Although the concession made by St. Ange and Labuxiere to plaintiffs ’ ancestors was void for want of legal authority, yet after the territory west of the Mississippi had become a part of the United States, there is contained in Yol. 3 of the American State Papers— Public Lands — a confirmation to Joseph Calve’s “representatives” of 2 x 40 . , . . . . arpens for acts of ownership and possession prior to 1803, lying in the city of St. Louis, with an order for its survey. The evidence shows that there was a subsequent survey and a Government patent was issued to 80 arpens o.r 61-71 acres delivered to a Mr. Schible for Joseph Calve’s “representatives” on the 24th of May, 1845. And this presents the question as to the effect of that patent as a vestiture of .title. When the title thus emanated from the Government, Joseph Calve had been dead fifty years. It will be observed that this grant was not made to the heirs of Joseph Calve. Hence no primaUacie case existed in favor of any person bearing that relation to him, for the terms of the patent did not purport to put any title in such.person. There was no evidence that any descendant of his was at the time in possession of the land or had made any claim thereto during the fifty years that Joseph Calve was dead. Under these circumstances all that the agents of the government could do would be to have the patent read, as it did, “to his representative.” In order to connect themselves with the title it was essential that the plaintiffs should adduce evidence tending to show that the daughter of Joseph Calve under whom they claim was at the time of the issuance of the patent his “representative” and entitled to some part or all of the land in controversy. That the agents of the Government did not know of any claim or right on her part to the land in controversy is evident from the fact that the patent was not issued to her as an heir or descendant of Joseph Calve, but was expressed so as to vest title “to his representatives.” There is not a particle of evidence in the record that she represented him one whit as to any interest in the land in dispute. The term “representatives” includes grantees, assignees,’transferees, devisees and other persons in privity with Joseph Calve. In order to connect his daughter with the above patent, it was indispensable that the parties claiming through her should have adduced some testimony to show that she was alive fifty years after the death of her father, and that during his lifetime he had neither conveyed by deed or will the property in question nor had it been taken from him by operation of law in part or in whole. Por, unless such a. showing was made, a link under the patent in question was missing. They have failed to show any connection through her with the title to any part of 'the land sued for. Their failure to adduce this evidence creates a hiatus in their chain of title which precluded any recovery in this action under the well established rule, that in ejectment suits, where the parties do not claim under a common ancestor, plaintiffs can only recover upon a. clear deraignment for a fee simple title good against the world. [Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Felker v. Breece, 226 Mo. 320; Creech v. Childers, 156 Mo. l. c. 343; Burnham v. Hitt, 143 Mo. l. c. 420; Stephens v. Murray, 132 Mo. 468.]

The trial court did not err therefore in its direction to the jury in this case to bring in a verdict for the defendant.

The judgment heréin is affirmed.

All concur.