Hogan v. Page

32 Mo. 68 | Mo. | 1862

Bates, Judge,

delivered the opinion of the court.

This case was in this court once before, and the decision in it is reported in 22 Mo. 55. Having been remanded to the St. Louis Land Court, it was there tried again and judgment given for the defendant; and to reverse that judgment the/ plaintiff has brought the case again to this court by writ of error. At the trial below, the plaintiff gave in evidence the same confirmation to the representatives of Auguste Condé, which was considered by the court when the case was here before, and claimed as heretofore that that confirmation enured to Louis Lemonde, under whom he claims. He also gave some evidence of possession of the premises by Louis Lemonde prior to the 20th day of December, 1808, and claimed thereby a confirmation by virtue of the act of Congress of 13th June, 1812.

The Land Court instructed the jury that “ upon the case as made by the plaintiff, he is not entitled to recover.”

To entitle the plaintiff to recover, he must show title in himself; and until he has made a prima facie case, the defendant is not bound to show any color of right to the possession.

I. This court, when the case was here before, fully and clearly decided that the confirmation to Condé’s representatives did not enure to Lemonde. The plaintiff claiming only under Lemonde, has therefore shown no title in himself under that confirmation.

II. The confirmation so given in evidence by the plaintiff to the representatives of Condé is a superior title to a confirmation to Lemonde by the act of 1812. The plaintiff has thus himself shown that he has no title by confirmation under the act of 1812.

Therefore the court properly instructed the jury that he was not entitled to recover.

Judgment affirmed.

Judges Bay and Dryden concur.