Fine v. St. Louis Public Schools

| Mo. | Mar 15, 1860

Ewing, Judge, delivered

the opinion of the court.

The special act of 1855 relating to jurors in St. Louis county was properly disregarded by the court in directing a special venire for a jury to be summoned outside of the city limits. The inhabitants of the, city were not competent jurors. This point was not decided in the case of Eberle v. The Schools, 11 Mo. 261, (two of the judges making no allusion to it in their opinions ;) but we concur in the conclusion of the judge (Scott) who gave an opinion on that point.

On the trial the plaintiff read in evidence, among other conveyances, a deed from the sheriff of St. Louis county to Joshua Eine for the tract of which the land in controversy is a part. The defendant objected to the evidence on the ground that the deed was void, the whole tract having been sold in one mass without being divided. The statute relating to the levy and sale of property under execution is directory, and a violation of its injunctions will not make void a sale for such cause, although it may be good ground for setting it aside, on proper application. (Rector v. Hart, 8 Mo. 460.)

The plaintiff read in evidence a conveyance from one Cuns to Fine, dated 1792, for a lot in St. Louis, which recited that Eine was then an inhabitant of St. Louis. This paper was read in rebuttal after the defendants had introduced evidence with regard to Eine’s removal to and residence on the Mara-mec, and of his acquisition of land at that place prior to its date. One of the defendant’s counsel erroneously assumes in his argument that the paper in question was a conveyance from Eine to Cuns, and bases his objections mainly upon this assumption. Eine, however, was the grantee, and the recital as to his place of residence at the time of the execution of the deed is the mere declaration of a third person, which was inadmissible. There is no rule of evidence that would make the recitals of Eine’s grantor evidence in his own favor, or for those claiming under him. The rule respecting the nature and effect of recitals in deeds is reversed in this case, and the attempt here is not to set up the recital as an estoppel by one claiming adversely to the deed, but the party claiming under it seeks to use the recital in his own behalf. Although the recital, as it respects Fine’s residence in St. Louis, was inadmissible, we see no reason why the fact that he bought a lot there should not go to the jury for what it is worth. Whether it is a circumstance of much or little importance as bearing upon the question of abandonment will be for the jury to determine, and for that purpose the deed might have been offered.

The instructions given by the court on its motion are erroneous. They are as follows: “ If the jury believe from the evidence that Philip Fine cultivated this lot as stated in the first instruction given for the plaintiff, and that he in his own mind continued to claim it until the 13th June, 1812, then the jury should not find that he had abandoned his claim to it, and until the contrary be proved the jury should presume that he continued to claim. And although the jury may believe that Philip Fine quit cultivating said lot .when the fence fell down, and went away to live on land on the Maramec river conceded to him, and made a farm thereon, and failed to prove up his claim to said lot under the act of 1824, these circumstances do not constitute abandonment of his claim to said lot.”

In support of these instructions we are cited to the cases of Page v. Scheibel, 11 Mo. 183, and Barada v. Blumenthal, 20 Mo. 162" court="Mo." date_filed="1854-10-15" href="https://app.midpage.ai/document/barada-v-blumenthal-7999407?utm_source=webapp" opinion_id="7999407">20 Mo. 162. In the first of these cases, the court was asked to declare, as a matter of law, that the facts of removal from St. Louis to another place in the same county, which was made a permanent domicil prior to 1796 ; that the claimant ceased to cultivate the land, and that neither lie nor his representatives set up claim to the same before any of the authorities of the United States under any act of Congress, nor exercised any act of ownership over the same, constituted an abandonment. This was held erroneous, and that the facts of removal and ceasing to cultivate were not necessarily inconsistent with a continued claim; that there must be a quitting of the possession of the property with the intention that it should no longer be the property of the possessor. In the second case cited, the instruction asked and refused entirely threw out of consideration the question raised on the defence respecting abandonment, which was held to have been rightly refused, because there was evidence of abandonment which the jury should have been at liberty to consider. In the case before us the state of facts is different from that in the cases cited, and they do not sustain the ruling of the court in giving the instructions.

The Spanish law on the subject of abandonment declares that if a man be dissatisfied with his immovable estate and abandon it, immediately he departs from it corporeally with an intention that it shall no longer be his it will become the property of him who first enters thereon. (1 Partidas, Law 50, p. 365.) Abandonment is a question for the consideration of the jury and depends upon the intention, which is to be ascertained from circumstances. (Landes et al. v. Perkins, 12 Mo. 257. See also 20 Mo. 162.) What the claimant may have determined in his own mind, it is true, could only be known by his acts and conduct; but this phraseology of the instruction was calculated to give undue importance in the minds of the jury to certain evidence of Pine’s declarations and to divert attention from other facts in the case entitled to consideration.

In the case of Page v. Scheibel, supra, it was obviously improper to give the instruction asked respecting abandonment under the state of facts proved, because there was evidence of a continued claim to the land, notwithstanding the claimant’s removal from it and the acquisition of a domicil elsewhere. But it does not follow that it was proper to charge the jury, in this case, that similar acts or circumstances did not constitute abandonment; for if there was any evidence besides tending to prove abandonment, it was erroneous to select these facts from the mass and present them to the jury as being decisive of the case; for so the jury would be inclined to regard them under sucb an instruction. While the charge directed the attention of the jury especially to the facts presented, it was calculated to impair the force of other evidence in the cause. In other words, it was in the nature of a commentary upon the evidence, and was calculated to mislead the jury.

If the fifth and sixth instructions are to be understood as declaring that a claim, right or title under the act of 1812 must be established other than by evidence of inhabitation, cultivation or possession, they are erroneous and contrary to what has been the settled construction of that act by this court, and the supreme court of the United States. (Vasseur v. Benton, 1 Mo.-; Lajoye v. Primm, 3 Mo. 368 ; Page v. Scheibel, 11 Mo. 167; Guitard v. Stoddard, 16 How. 510.)

The title of the claimant under this act does not depend upon proving the existence of a formal permission from the authorities of the former government to take possession of village lots, a survey thereof, or any documentary evidence of title thereto ; and the act requires no such proofj but confirms the title upon possession, inhabitation or cultivation, without regard to the legality of the origin of such title. In Guitard v. Stoddard, supra, the court adopted the conclusions presented in the cases above cited, and observe that the act of 812 makes no requisition for a concession, survey, permission to settle, cultivate or possess, or of any location by a public authority as the basis of the right, title and claim upon which its confirmatory provisions operate; that although there may have been originally no legitimate right or claim without some such authority, Congress, in the act of 1812, was not dealing with written or formal evidences of right.

The seventh instruction implies a distinction between a right, title or claim arising from possession or cultivation merely, and a claim or title of a supposed higher nature contemplated by the act of 1812; and also implies that less evidence would be sufficient to make out an abandonment in the former case than the latter. In this respect the instruction is equally objectionable with the fifth and sixth, which we have seen give an improper construction to the act of 1812. If inhabitation, cultivation or possession alone was the basis of the confirmation under the act, such cultivation or possession implying a rightful claim, there was no ground for telling the jury that the absence of evidence of a higher right or claim than these facts conferred, was a circumstance for their consideration in determining the question of abandonment.

The remaining instructions need not be noticed in detail; we think they were properly refused. As to the plats read in evidence, we are of opinion they were admissible for the purpose for which they were offered; and the court very properly refused to charge the jury as prayed in the eighth instruction as to their relative weight as evidence.

Judgment reversed and the cause remanded.

Judge Scott concurring.